section 20 and human rights damages (£17,500 award)

Posted on May 17, 2016 by suesspiciousminds

 

Kent County Council v M and K (section 20 : declaration and damages) 2016

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/28.html

 

The judicial trend for curbing the worst excesses of section 20 continues (see for example  https://suesspiciousminds.com/2015/10/21/fast-and-the-furious-tunbridge-wells-drift/ )

Apologies to the people of Kent, I know some of you are readers, and it is nothing personal, I just report the cases as they happen.

In this case, there was NO issue as to whether the original section 20 consent was lawful (the parents had capacity, and the principles laid down by Hedley J had been properly followed), but the drift and particularly here the failure to issue care proceedings in a timely fashion were what led to the human rights claim, and later damages.  Most of the s20 drift cases involve very young children – in fact infants, but this one involved an older child whose difficulties were significant and got worse over time.  This one is unusual in that it was not the parent complaining that drift and delay had impacted negatively on them, but the child arguing that although the mother had granted valid s20 consent and was not seeking rehabilitation of the child, the LA’s failure to issue care proceedings had harmed the child.

 

 K was placed in the care of the LA pursuant to section 20 Children Act 1989 (CA 1989) on 14 December 2011, the LA issued these proceedings on 16 November 2015. The HRA claim is put under three headings: the failure of the LA to assess K; failure to meet K’s needs and the failure to issue court proceedings. The LA deny this claim. K’s mother supports the claim. 

 

Just shy of four years of s20, that does seem like a long time – from a child’s perspective it is a massively long time, more than a fifth of their total years of childhood.

The Judge sets out the background prior to proceedings being issued. It is long, but I’ll put it in full, because it shows clearly the missed opportunities for the case to be seized and the drift put right. Many many LAC reviews.

  1. K was accommodated by the LA, pursuant to s 20 CA 1989, on 14 December 2011. Prior to that she had been living with her aunt, as her mother was unable to cope with her care. K has a younger sister who remains in her mother’s care. Her father has taken no active part in her care, or these proceedings.
  4. The LA had had prior involvement with K. They had completed a core assessment in April 2011 when K was living with her aunt. The assessment recorded the need for M to address her own mental health needs, K’s relationship with her M was difficult which ‘will certainly impact on her emotional and behavioural development’, and ‘[K] may well need some intervention from the primary mental health team to support her with the difficult feelings and interactions she has with her mother and sister’. The recommendations in the assessment included M to give parental responsibility to the aunt.
  7. On 5 December 2011 K’s aunt informed the LA that she was unable to continue to care for K. K’s mother, M, gave her consent to K being accommodated by the LA by telephone that day. There is no issue that this was a valid consent.
  10. The documents show a placement plan was formulated on 14 December, providing that the period of accommodation pursuant to s 20 was for an initial period of four weeks, pending the convening of a family group conference (FGC), to consider whether any alternative family placements could be explored. This plan recorded ‘It is a concern that [K’s] emotional needs has not been addressed in an appropriate way during her short life’. This care plan was signed by M.
  13. At the Looked After Review (LAC Review) on 6 January 2012, it records K needing a referral for therapy/counselling and a referral had been made to the Lenworth Clinic (next meeting 25 January). The care plan is recorded as being ‘Eventual return to birth family’. And under the ‘Assessment’ sub heading, it states a core assessment ‘to be updated’. Under ‘Emotional and Behavioural Development’ it states K is ‘known to CAMHS and plan is that once [K] is settled fully they will start working with her’. These LAC Review minutes are signed by M.
  16. On 11 January 2012 the family met at the FGC, and all agreed that it would be better for K to stay in foster care as none of the family were able to have K live with them. M signed this document, signifying her agreement to this plan.
  19. At the next LAC Review on 27 March 2012 there is a record of a meeting at the Lenworth Clinic on 25 January 2012, an acknowledgement that K needs a referral for therapy/counselling. It records the referral to the Lenworth Clinic and notes ‘no work will be undertaken with her until current foster placement would be confirmed for long term’. The acute difficulties between K and her M at contact are noted. Importantly, this record notes the change in care plan for K to long term foster placement with foster carers, but acknowledges K has not been informed. It records the core assessment has been completed (although no updated core assessment has been produced) and notes it recommends that it would be ‘advisable to convene a legal planning meeting for the [LA] to seek advice regarding [K’s] care status and issue of parental responsibility’. This advice is repeated in the care planning section, where it records ‘legal advice needs to be sought re long-term fostering as permanency for [K] and Parental Responsibility issue’. This topic is recorded in the decisions and recommendations section as ‘Legal advice to be sought re Parental Responsibility Issue By whom – Social Worker and her manager Timescales – 27/04/12′. This document is not signed by M.

 

 

Quick break in the background – the chronology there shows that by April 2012, there had been a decision that there needed to be a legal planning meeting to discuss the child’s legal status and plans for the future. In the next section we learn that some form of meeting with legal happened in June 2012.  We know that care proceedings were not issued until November 2015. Let’s continue.

  2. The advice from CAMHS of K being unable to benefit from individual therapy until she is ‘firmly ensconced within a family unit’ is confirmed in a letter copied to the LA from the Lenworth Clinic. The LA urge CAMHS to reconsider their position in a letter dated 2 May, stating that K is ‘settled down and doing exceptionally well in the foster placement’. In June CAMHS respond to say they have sent the foster carers a questionnaire and when it is returned the referral will be discussed further.
  5. K’s placement broke down on 5 July, in circumstances where her behaviour was so difficult the police had to be called.
  8. At the next LAC Review on 12 September 2012 there is reference in the record of the meeting to a legal planning meeting on 25 June 2012, but no other detail about this meeting has been disclosed. As regards the CAMHS referral it notes K has moved placements and another questionnaire will be sent to her new foster carer. The record repeats that K needs a referral for therapy/counselling and notes the concerns regarding K’s emotional well-being caused by her wish to live with her mother, why her sister lives with her mother and she can’t, and her mother’s inconsistent behaviour at contact. It continues ‘[K] has been emotionally and psychologically affected by her experiences. She does require psychological support as soon as possible…It is hoped that once this [questionnaire] has been received by CAMHS appointments will be set up’. Under the section entitled ‘Legal’ it states ‘A legal planning meeting needs to be pursued with regard to care proceedings’. There is reference to the core assessment and care plan to be updated. Under ‘Decisions and Recommendations’ is recorded ‘Care proceedings to be pursued in order to give this child some stability and long-term placement. The referral to CAMHS to be pursued and the questionnaire to be completed by the previous and present foster carer.’ M did not sign this record.
  11. On 27 September the LA were informed by the Lenworth Clinic that as K was no longer placed in their catchment area they were referred to the CAMHS resource in the area of the new foster placement.
  14. The next LAC Review was on 5 December 2012. There is a repeated reference to a legal planning meeting on 25 June 2012. As regards the CAMHS referral there is reference to Ms A (the LAC Mental Health Specialist in CAMHS) requesting a meeting with the foster carer, which was still outstanding. The record notes ongoing concerns about K’s emotional well being, that she struggles in her relationship with M and M being unable to empathise with K and what she is going through. K has been ’emotionally and psychologically affected by her experiences’ and requires psychological support as soon as possible. The record of the meeting refers to the care plan, stating that the case is twin tracked ‘but the mother is clear that she could not care for her daughter and will therefore not consider rehabilitation home. Given the situation, the local authority needs to pursue long-term plans for [K]‘. M does not sign these minutes.
  17. In April 2013 there is a letter from Ms A to the LA setting out the CAMHS meeting with the foster carer and the social workers. It is accepted by Ms King, for the LA, that K was not present.
  20. The LAC Review meeting on 16 May 2013 refers to the CAMHS meetings being with the foster carer, but then records K ‘has been emotionally and psychologically affected by her experiences. She is currently receiving psychological support via [Ms A] at CAMHS’, later on referring to Ms A as now ‘working with [foster carer] and [K] to advise on strategies to manage behaviours and support the placement’. The CAMHS referral has been noted to have been ‘actioned’. M does not sign the minutes, but is recorded as having been seen on 21 March.
  23. On 16 July 2013 there was an emergency breakdown of the foster placement, there was an alleged assault by K on the foster carer requiring a late night home visit by the LA.
  26. The LAC Review meeting on 5 September 2013 refers to K attending the meeting. The record notes there had been no updated core assessment, no life story or direct work done with K and that this had left her ‘confused and unclear why she could not remain in the care of her mother. This is further exacerbated by a younger half-sibling remaining in the care of [M].’ It continues ‘LA do not hold PR for [K] and no other family members have been identified. The LA needs to give further consideration to this given [K’s] young age and potential difficulties in the future if they do not hold PR…The LA have not been able to safeguard [K’s] emotional well being given the breakdown in placements and the fact that Permanency has not yet been achieved for her…She [K] has previously had intervention and support from CAMHS – it was unclear as to whether this is being offered at present….Legal: Section 20. LA will need to give this further consideration in view of securing stability and security for [K]’.
  29. In January 2014 there is a signed letter from M confirming her consent for the foster carer to sign for day trips abroad and emergency medical treatment. This is followed in February 2014 with a health consent form signed by M.
  32. There is a report from an educational psychologist, following a consultation with K on 6 November 2013 regarding her behaviour at school which is reported to have improved.
  35. Undated LAC Review minutes indicate a meeting took place in January 2014. There is reference to Ms A working with K in January 2013, which it is accepted is incorrect as no direct work was done with K. The minutes refer to Life Story work being started, but not completed. There is no entry in the box regarding consideration of any new legal orders. Under the section entitled ‘Is this the preferred placement option for this child/young person?’ it says ‘No’, when asked why, it states ‘It is preferred that [K] return to a Local Authority Foster Placement’, when asked about alternative plans it states ‘An assessment is being undertaken to fully identify [K’s] needs’.
  38. In May 2014 there is a letter from SM (Senior Systemic Psychotherapist CAMHS) to the social worker confirming the four professional meetings and their conclusion that ‘the uncertainty about her future is affecting [K’s] emotional well-being and since [the foster carer] is similarly unable to provide reassurance to [K] this is having an impact upon [K’s] attachment to the [foster carer] and the [foster carer’s] attachment to [K]. [the foster carer] must, by virtue of not knowing, withhold some aspects of ”normal’ family life as such as planning for the future. It could be that this is, in part, why [K] believes she may still return home, and why she has seemed confused in her thinking. Other issues notwithstanding, it would seem that [K] is positioned between two families and needs to know who she is going to live with long term. It must be borne in mind that multiple moves (such as have occurred for [K]) can only increase her sense of loss and reduce her hope that there is someone and somewhere she can feel safe and secure. It is not surprising that she displays very challenging behaviours, she must feel enraged and despairing.’
  41. At around this time M writes a letter to K, to explain why she can no longer care for her.
  44. In the LAC Review minutes for 18 June 2014 K is noted as attending. They note that the LA have not pursued to change the legal status for K as work was being undertaken with M and she is supporting the care plan. It notes that the social worker has ‘undertaken and completed much overdue life story work’ which M has supported so K has a clear message she is not returning home. Under ‘Legal’ the minutes record ‘[K] remains accommodated under s 20. Whilst Mum continues to give consent and work with the LA in care planning for [K] there are no indications to change this.’ In July 2014 M gave her consent for K to go on holiday with the foster carer. In another record of this meeting it notes ‘[K’s] emotional and physical behaviour continues to be of concern within the placement and this is felt to be due to the level of uncertainty she still has in regards to her placement due to being told she may be moving placements/is staying and the confusion this has caused her….a plan of permanency has not been agreed for the IFA placement due to Kent’s current policy on IFA placements..’.
  47. In September 2014 the foster placement broke down due to K’s disruptive behaviour and in October she moved to her fourth placement.
  50. At the LAC Review on 20 November 2014, which K attended, the minutes confirm that individual support from CAMHS has yet to be offered. As regards the care plan meeting the need for permanency it records ‘Yes – if stability of Placement is achieved. Consideration also needs to be given to [K’s] Legal Status which is s20 and has been since December 2011’. A little further on under ‘Legal’ it records ‘IRO has asked that LA give consideration as to how her Legal Status could be more secured.’ Under ‘Decisions and Recommendations’ the minutes note that the social worker is to request senior managers to write to CAMHS to secure appropriate level of service including a definite date for State of Mind Assessment. Also the social worker is to raise with managers K’s legal status and advise IRO of outcome. One record of this meeting refers to concerns about the increased use of restraint and sedatives in her previous foster placement, with no further reference to how this was dealt with or whether M was informed.
  53. A file note dated 7 December records discussions with the out of hours social worker. K had told the foster carer that ‘she could go back to her mum any time’. The record ends with the following ‘K needs to be spoken to urgently by her social worker tomorrow as she needs to feel validated and listened to and clearly needs an explanation about her current status in care and why she is not in her mother’s care. It seems she has some unrealistic expectations about return to her mother’.
  56. On 5 January 2015 there is an out of hours file note with the foster carer seeking to end the placement due to K’s behaviour. K moves to her fifth placement on 16 January.
  59. A file record on 18 March 2015 notes that CAMHS have not yet made any contact with the foster carer, although the school have made contact for K with another project.
  62. In around June 2015 the LA make a referral to Great Ormond Street CAMHS where they note K has ‘been passed around services for the last 18 months with no real support or assessment in place. The [LA] feel this in unacceptable for K and she needs a professional team to take responsibility for completing an assessment and putting a plan in place to address her needs’. The referral records it has the support of the service manager, Ms Ransley.
  65. K’s behaviour deteriorates again and the police are called. She moved to her sixth placement on 10 June 2015 for one night, before being placed with Mr and Mrs M her current carers on 11 June 2015. They are her seventh foster carer in four and a half years.
  68. The LAC Review minutes for the meeting on 7 July 2015 record the attendance of Ms Ransley and K and M’s apologies. The referral to GOSH is noted. Under ‘Legal’ it records ‘[K] remains accommodated under s20. Discussions have been ongoing outside of the CIC Reviews with LA regarding this. NB Subsequent to this Review Service manager advised via email that Care Proceedings will be filed in first week of September’.
  71. A psychological report dated 6 August 2015 details the number of moves K has had and recommends a referral to GOSH, which had already taken place.

 

 

This is very tricky. On the one hand, this child was clearly uncertain about her future and getting very mixed up by it. On the other hand, the Local Authority had a mother who was genuinely consenting to the child being in foster care and accepting that she was not able to care for her. There’s at least an argument that in keeping this outside of care proceedings, although the length of s20 was unusual, the LA were observing the least interventionist approach which is the spirit of the Children Act 1989. Bear in mind that the Court can only make an order if it is better for the child than not making one, and here we had a mother who was working with the Local Authority and in agreement with the foster placement and accepting that she could not resume care of K.  I can understand the LA doubt about whether an application for a Care Order could have resulted in a Care Order being made, given that mum was working with the LA and giving valid s20 consent.   It is the unusual position of it really being the child who was unhappy with the s20 rather than the parent.

 

It was the Guardian, on behalf of K, making the Human Rights Act claim. Here are the Guardian’s arguments as to why there was a breach of K’s human rights.

  1. On behalf of K it is submitted that when K was received into care in 2011, at the behest of the LA, they were already aware from their own core assessment in April 2011 of her considerable difficulties in her relationship with her mother, and that she may need some intervention from the primary mental health team. Despite this knowledge in their own assessment the LA failed to;
    1. (i) Update her core assessment for over 2 years, despite repeated recommendations at LAC Reviews to do so.

(ii) Seek a psychological assessment of K’s family. The LA had recommended this should be done at a meeting in January 2005.

(iii) Seek a psychiatric or psychological assessment of K until 2015, despite that being recommended in LAC review meetings from March 2012. It is acknowledged she did see an educational psychologists in November 2013, but this concerned her behaviour at school. Some of the LAC reviews appeared to proceed on the basis that she was seeing someone from CAMHS, but the report dated 6 August 2015 from the trainee psychologist VT makes it clear she had not met K.

(iv) Life story work, although repeatedly recommended in LAC reviews did not start until over 2 years after she was received into care.

  1. In her statement the Guardian deals with the lack of assessment in the following way; ‘If such an assessment was sought many years ago work could have been done on the mother/child relationship which may have prevented the need for [K’s] permanent accommodation. In any event work could have been carried out on attachment and behavioural issues and therapeutic intervention could have assisted [K’s] development which suffered by this not happening…This is an assessment that the LA could have commissioned itself, if CAMHS would not agree to undertake it’. Mr Hall rejects any suggestion in the LA evidence that they recognise, with the benefit of hindsight, they may have acted differently. He submits the need for assessment was obvious from the time K was placed with foster carers in 2011. K’s attachment difficulties with her mother needed urgent assessment, and then effective support put in place. That was repeatedly recommended, but not done.
  4. Turning to his second heading, Mr Hall recognises that it is inter-linked with the failure to assess. In the record of the LAC review meeting on 5 September 2013 the LA candidly recognise they have ‘..not been able to safeguard [K’s] emotional wellbeing given the breakdown of placements and fact that permanency has not been achieved for her.’
  7. There have been 7 placement breakdowns, often at short notice and in upsetting and distressing circumstances for K. The records have many references to the extent the placement breakdowns have caused K emotional harm. In their referral for a psychological report in 2014, some three years after K has been in the LA’s care, the reason for a different picture at school emerged. As the record of the meeting notes ‘…[K] has learnt to cope by withdrawing emotionally and functioning independently whilst maintaining control over her environment. This works well at school and when she first enters into a new placement. However, this coping strategy breaks down at home as she starts to settle and get close to the foster carer…’ To illustrate this Mr Hall relies on the report to the LA review in January 2014 concerning K’s third foster placement with Mr and Mrs T. The social work report for the review notes that K was happy and beginning to form an attachment to the foster carer, but as it was an agency placement the LA, as a matter of policy, were unable to sanction this placement as a long term placement. The report notes that this lack of certainty in the placement was impacting on K’s emotional well-being. This view was endorsed in a letter dated 15 May 2014 from CAMHS and it went further in stating ‘It must be borne in mind that multiple moves (such as have occurred for [K]) can only increase her sense of loss and reduce her hope that there is someone and somewhere she can feel safe and secure. It is not surprising she displays very challenging behaviours, she must feel enraged and despairing.’
  10. Between December 2011 and February 2016 Mr Hall submits the LA have not ensured K has received appropriate therapy; had they done so the Guardian considers K’s family life is likely to have been very different. At the LAC review on 4 February 2015 it was recorded ‘…It is imperative that therapeutic support is offered to [K] to enable her to become more stabilised to reduce the risk of further placement breakdowns’.
  13. Under the third heading, the failure of the LA to issue court proceedings, Mr Hall also recognises is linked to the first two. He submits on the LA’s own records K suffered from instability from spending so long in foster care, with only her mother having parental responsibility and no clear direction. K’s current social worker Ms A sets out in her statement in support of these proceedings ‘It is envisaged that a care order will also support [K] in terms of feelings of security and stability, as she has historically struggled to understand the decisions made by her mother, and therefore she will know that there will be a level of oversight to her care planning’.
  16. Mr Hall submits if proceedings had been issued there is every likelihood they would have made a difference. The repeated failures by the LA to follow through their own decisions would have been subject to effective scrutiny, by the guardian, her legal representative and the court. The issue was repeatedly flagged up by the LA from March 2012, but not followed through. Had K been represented in court proceedings, there would have been proper oversight, the plans would not have been allowed to drift and assessments would have been undertaken when required. Whilst K’s mother did not raise any complaints at the time about how K was cared for by the LA, she had not been able to provide consistent and predictable care for K before 2011, K’s mother had her own mental health difficulties, she was inconsistent in her attendance at LAC reviews and her contact was gradually reduced to the extent she was only seeing K once during each school holiday. Mr Hall submits it is difficult to see how she could be regarded as someone who was proactively exercising her parental responsibility in relation to K.
  19. As regards any suggestion by the LA that s 20 is not time limited and/or is not always a prelude to care proceedings Mr Hall submits the LA’s own records point in the other direction. In particular,
    1. (i) On 12 September 2012 the LAC review records that a legal planning meeting needs to be pursued with regard to care proceedings noting ‘care proceedings to be pursued in order to give this child some stability’ and long-term placement’.

(ii) On 16 May 2013 the LAC review records that the LA are to review current legal status within next 3 working weeks and advise IRO of outcome.

(iii) 5 months later on 5th September 2013 the records note the LA does not hold PR for K and ‘the LA needs to give further consideration to this given [K’s] young age and potential difficulties in the future if they do not have PR…the LA have not been able to safeguard [K’s] emotional wellbeing given the breakdown of the placements and the fact that permanency has not been achieved for her’.

(iv) 14 months later on 20 November 2014 the LAC review notes ‘IRO has asked that LA give consideration as to how her legal status could be more secured…Sally to raise with managers [K’s] legal status and advise IRO of outcome’.

(v) 4 months later on 4 February 2015 the LAC review records similar concerns being expressed by the IRO as to K’s legal status.

  1. The LA issued care proceedings on 16 November 2015. Mr Hall submits the fact that care proceedings were finally issued conclusively responds to any suggestion by the LA as to their necessity. Otherwise, he asks rhetorically, why did they issue them? He submits that the failure to issue the proceedings soon after K was placed in care has denied K the opportunity to be properly assessed and access appropriate support at a much earlier stage as, he submits, it would be inconceivable that a court would have permitted care plans to be made without a proper assessment of K’s needs. As a result K has lost the opportunity to have the input of a Guardian, a legal representative and planning for her care to be properly and robustly based on sound assessment.
  4. Mr Hall submits the detrimental effect on K of the LA’s failure to secure emotional, practical and legal stability for her is clear from the LA records and the Guardian’s evidence.

 

The point here on the delay in issuing care proceedings that it is not merely the making of a Care Order that is achieved within care proceedings – having judicial and Guardian scrutiny of the care PLANS is a vital part of the process and if this had happened, K would have had a better care plan much sooner and suffered less disruption and harm in care.  The journey through care proceedings, says the Guardian, is just as significant as the ultimate destination.

 

What did the LA say?

 

  1. Ms King on behalf of the LA does not dispute the LA records. She submits there is no issue about the validity of the consent given by K’s mother, either at the start or during K’s placement with foster carers. She submits neither statute nor any guidance stipulate s 20 is a short term measure only. In this case, unlike the reported cases, there was not any dispute about the LA’s care plan for K. So, she submits, the starting point is very different and distinguishes this case on the facts.
  4. Ms King submits the documents show there was considerable involvement by K’s mother, such as the number of written consents provided by her for the foster carers to sign forms for her, the letter she wrote to K about why she was placed with foster carers. The submission on behalf of K that they should have issued care proceedings earlier does not amount to a breach of her article 6 and 8 rights.
  7. She submits there is no evidence of a failure to plan for permanency in that the LA investigated the options with the family first, when this was not possible their plan for K was to be placed with long term foster carers. They acknowledge the high number of placements, but state being within care proceedings was unlikely to have made any difference to the efforts made by the LA to secure a permanent placement. Ms Ransley, the service manager for the area at the relevant time, states ‘Providing children with stability within foster care is often a challenge (this is irrespective of their legal status) and this sadly was the theme for [K]. [K] experienced numerous foster care breakdowns within both the in house provision and the commissioned private foster care sector, which is regrettable but not unusual within a care system which operates a 30 per cent disruption rate. Finding the right match where it clicks, can often evade even the most meticulous professional.’ Ms King submits no link has been established that the situation would have been any different if care proceedings had been issued earlier than they were.
  10. Ms King refutes the submission that the LA failed to assess and/or provide therapeutic support for K. She submits the papers demonstrate the appropriate referrals were made to CAMHS but CAMHS concluded they should provide a service to the carers, not directly with K until she was settled in her placement. Whilst Ms Ransley in her statement acknowledges the LA’s frustration with the position taken by CAMHS that is the service provided to meet the mental health needs for children by the NHS, which is what the LA commissions for children in their care. Ms King relies on the fact that the Guardian has not sought an independent assessment within these proceedings.
  13. Ms King submits the submission on behalf of K that as a result of the LA breaches K’s welfare has been harmed, is speculative. Given the harm K suffered prior to coming into care and the extent to which that has been the root cause of her placement breakdowns and the uncertainty over CAMHS support due to placement uncertainty, such harm as might be found proved cannot be attributed directly to the failings of the LA to the extent of a breach of K’s article 6 and 8 rights.
  16. Finally, Ms King submits K’s mother has exercised her PR in a way regarding K’s accommodation that was and is consistent with her welfare. There were no alternative carers for her and K had an IRO. Ms King states in her written skeleton argument ‘Whilst the LA accept that it is better for [K] that a care order is made so that her position as a child in care is formalised by way of an order which signals permanency and confers PR onto the LA, none of those advantages mean the LA has acted unlawfully and/or breached [K’s] Article 6 rights. Her mother exercised her PR in a free and informed manner. Her mother decided that [K] was best looked after by the LA. She was entitled to take that decision and the LA was entitled to act on it’.

 

I think that those are good points – somewhat weakened by the number of placements and the child being at times sedated in care, which is a very unusual set of circumstances, but on the whole, the Local Authority had a decision to make as to whether care proceedings would achieve something for the child that could not be achieved without it.  I have certainly had cases (with the child not having such a bumpy ride in care) where with an adolescent in a settled foster placement I have advised against care proceedings where the parents are giving long-term and capacitous section 20 consent with no prevarication.  For a significant part of that four year period,

We know from the headline though that the LA lost here, so let us cut to the chase.

 

Discussion and decision

  1. There is some force in the submission made by Ms King that the facts in this case are different than those in many of the reported cases concerning the misuse of s20. A common feature of those cases was an issue over the parent’s consent to their child being accommodated and the lack of agreement with the care plan; neither of those matters featured in this case.
  4. Ms King builds on that position as, whilst acknowledging what the President said in Re N (ibid) about s 20 having a role as a short term measure, she seeks to rely on the fact that there is nothing specific in the section, or guidance, to found that view.
  7. The difficulty with Ms King’s position is that the documents produced by the LA paint a picture of
    1. (i) A mother who has to a large extent abdicated her parental responsibility to the LA. Whilst she has some involvement in the decision making after K is placed with foster carers, the fact that she doesn’t seek to challenge the LA inactions in the context of what is taking place demonstrates her inability to exercise her parental responsibility proactively for the benefit of K.

(ii) The LA on the documents decided repeatedly there should be a further/updated core assessment, mental health assessment/therapeutic support and legal advice about K’s status; but the same documents demonstrate repeated failures to follow through these decisions.

(iii) Repeated and worsening placement breakdowns, which were deeply damaging to K’s emotional well-being.

  1. Whilst there is no time limit on providing s 20 accommodation in the statute, each case has to be considered on its own facts, with active consideration being given as to whether proceedings should be issued. In this case care proceedings would have helped significantly to provide the stability and security that K so clearly needed. K would have had the benefit of a guardian and legal representative to give her an effective voice regarding the LA failures and enabled the LA to share PR with M. As the LA accepted in the middle of 2015 K had been ‘passed around services for the last 18 months with no real support or assessment in place’. This is hardly a ringing endorsement by the LA of their own care planning for K.
  4. A common thread in the records is the harm being caused to K by the lack of security and stability any of her placements (other than the current one) were able to offer her. The evidence demonstrates K was acutely aware that her mother could remove her at any time.
  7. I am satisfied that the LA have acted unlawfully, in my judgment their actions have been incompatible with K’s article 8 and 6 rights. I have reached that conclusion for the following reasons:
  1. (1) The failure by the LA over a period of over three years to conduct or update the core assessment done in April 2011 meant the LA had not properly assessed K’s needs during the period she was placed with them from December 2011 to November 2015 to provide a secure foundation for care planning for her, in order to protect her article 8 right to family life. The care plan for long term fostering lacked any detailed foundation that such an assessment would have given it.

(2) The LA’s failure to secure appropriate mental health assessments and/or therapeutic support meant her continued placement breakdowns over that period were unsupported. Reliance on inconsistent CAMHS referrals together with the repeated misunderstanding of what CAMHS support was being provided permeated the decision making and the delay in seeking an assessment until 2015, when a referral was made to GOSH. This all contributed to the increased risk of repeated placement breakdown.

(3) The suggestion that the LA were not able to commission independent private providers on an ad hoc basis does not stand up to scrutiny. In her statement Ms Ransley states ‘Commissioning independent, private providers on an ad hoc basis does not happen. Local Authorities only generally fund these types of arrangements within care proceedings’. Yet this is what the LA did when they made a referral to GOSH in July 2015, prior to issuing proceedings. No explanation is given as to why this could not have been done earlier, other than an acknowledgement in Ms Ransley’s statement that ‘this should have happened sooner with hindsight.’

(4) The repeated failure by the LA to act on its own decisions for over three years to seek legal advice to secure K’s legal position, including consideration of the issue of proceedings and the advantages that would bring for K, together with the LA having PR through a care order. On their own admission in the evidence the LA filed in 2015 in support of the care proceedings, a care order would provide the stability that K clearly required. The delay of over three years in doing so is not justified in any way. That delay meant K was denied access to an independent guardian and her own legal representation, in circumstances where the LA were not implementing their own decisions about her and the only person with PR was not exercising it in a proactive way. K’s article 6 and 8 rights were compromised by this significant delay.

(5) Whilst K’s mother was entitled to exercise her PR for K in the way she did, that does not absolve the LA from actively considering whether it should secure its legal position in relation to the child concerned. Here K’s mother was, at most, after November 2011 reactive rather than proactive in exercising her PR. She responded to requests from the LA and attended some, but not all, meetings. Probably due to her own vulnerabilities she was not in a position to challenge the actions, or inaction, by the LA in relation to K.

(6) Reliance by the LA on the unlimited term of s 20 simply cannot be justified in a factual vacuum. The circumstances in this case demanded for K’s article 8 and 6 rights to be protected, for the LA to secure their legal position regarding K. The LA’s own records repeatedly make decisions of the need to get such advice, those decisions were repeatedly not acted on and when they were care proceedings were issued, nearly three and a half years after they should have been. It is unattractive for the LA to now submit that there was no obligation on them to issue such proceedings. The President’s words in Re N (ibid) could not be clearer.

(7) I am satisfied that if proceedings had been issued earlier the assessments that the LA failed to do are more likely to have been ordered by the court. Reliance by the LA on the fact that within these proceedings the Guardian has not sought any further assessment is a realistic recognition by her of the current position, that with a settled placement and a report from GOSH further assessment is not justified. That does not absolve the LA from responsibility of its failure to issue proceedings earlier, as it should have done, over three years ago.

(8) I agree that in considering this application the court should guard against making decisions with the benefit of hindsight. In her statement Ms Ransley observes ‘With the benefit of hindsight criticism can be formulated. Is the service and support provided to [K] optimal, [K] has been given what all children in care are, but for [K] like 30 percent of young people, her experience has been sub-optimal due to issues inherent in the care system. These issues are experienced by children subject to an order and those who are not.’ What this does not acknowledge are the facts of this case; the unacceptable delay in issuing proceedings, the consequent uncertainty which increased the risk of placement breakdown and the failure to properly assess and support K.

 

The Judge assessed the appropriate level of damages for K as being £17,500.

 

Statutory charge

 

The statutory charge is not very exciting, but I need to talk about it here, because it is important. The statutory charge is the term given where as a result of  free legal representation, someone obtains money through a Court order, and has to use that money to repay the cost of their legal aid. It usually occurs in divorce, and makes a lot of sense. If someone racks up a legal aid bill of £20,000 and as a result of their divorce gets £250,000 it makes perfect sense that the legal aid should be repaid out of that money, rather than the taxpayer footing the bill.

Up until fairly recently, this didn’t affect people in care proceedings. Legal aid for care proceedings is non-means non-merit  (which means that even a millionaire would be entitled to free legal advice and representation) and parents didn’t get any money back at the end.  But now that Human Rights compensation for bad behaviour by a Local Authority is a thing, the change to the Statutory Charge which means that it applies to such compensation is a big deal.

£17,500 of compensation for K is a decent amount of money, and intended to be compensation for what she has gone through in her life as a result of the human rights breaches the Court has found. But before she gets any of that money, she has to pay back the legal aid agency for the cost of her care proceedings AND the cost of her human rights claim.  That’s probably going to leave her with nothing.

Many of us were hoping that you could box off the human rights claim separately, which would be much less, and possibly an amount of money that the Court might order the Local Authority to pay. A human rights claim probably costs about £2,000, compared to the £10-20,000 of care proceedings  (remember that the legal aid bill covers barrister’s fees and expert fees too).

So, here are the options that the Court has :-

  1. Make no orders about costs, and know that almost the entire compensation package goes to the legal aid agency rather than the child or the parents.  Michael Gove is the person who benefits, not the person who actually suffered the human rights breaches.
  2. Make an order that the Local Authority pay the costs of the care proceedings AND the human rights claim. That means that the LA are paying out double the amount of compensation. It also makes it difficult to fit with the Supreme Court’s decision on costs in care proceedings, which are that there shouldn’t be costs orders unless the LA’s conduct WITHIN the proceedings has been egregiously bad. The conduct here is BEFORE the care proceedings, so there’s a strong chance that the LA would appeal. That racks up the costs even more, potentially swallowing up ALL the compensation, since really only the Supreme Court can decide how this affects their previous decisions.
  3. Make an order that the LA pay the costs of the human rights act claim. That’s a well-founded costs order and doesn’t cause legal problems. However, it is a small amount compared to the costs of the care proceedings, and may still end up with the child getting only a small amount of compensation.

 

 

The Judge in this case took the third option.

Costs

  1. Mr Hall seeks an order for the LA to pay the costs of the proceedings. He submits the HRA claim has succeeded, the court should be mindful of the impact of the statutory charge and in the circumstances of the case the court should make an order for the LA to pay the cost of the proceedings.
  4. Ms King resists this application. She submits the court should not depart from the general position in family cases that costs are not usually awarded in family proceedings (see Re S (A Child) [2015] UKSC 20 paras 15 and 29). She submits the LA have not taken an unreasonable stance. In any event, the LA should not be responsible for the cost of the proceedings, merely as a device to avoid the full impact of the statutory charge. She submits there are discrete costs concerning the HRA application.
  7. I recognise the financial pressures on the LA and that it is unusual for the court to make a costs order in care proceedings. Against that I have determined that the HRA claim succeeds, I rejected the submissions of the LA and made an award of damages. In the circumstances of this case, where the breaches continued for such a long period of time, I have reached the conclusion the LA should pay K’s costs of the HRA application only, but which will include the full costs of the hearing on 29 March 2016, as the only reason that hearing could not proceed was due to the late disclosure by the LA on that day of relevant documents. I will make no order for costs as between M and the LA.

 

 

 

I do have a fourth solution, but it is hard to use when a human rights act claim has already actually been made. Effectively, if a lawyer believes that the client has had their human rights breached and that compensation might be payable, they open up a brand new pro bono file. This is kept ENTIRELY separate from the care proceedings. Ideally another lawyer deals with the case so there’s no overlap at all.  Not a penny of publicly funded/legal aid money is spent on that file, so any compensation achieved is nothing to do with legal aid at all. The money would only go to legal aid if the care proceedings ended with a “Lottery order” about costs (that’s an order that says in effect, K had free legal aid and would only have to pay for it if she came into a huge sum of money, say a lottery win. These are NEVER made in care proceedings, because legal aid for them is non-means, non-merit – even a millionaire qualifies)

Ideally, under this pro bono file, the lawyer writes to the LA a pre-action protocol letter setting out the alleged breach and giving a figure that their client would be prepared to settle for. If the case settles, the costs are minimal and could be bundled into the settlement. The client gets the money, the lawyer gets paid for the work they’ve done, the LA don’t incur a costs order of tens of thousands.  If the case doesn’t settle, the lawyer has to decide whether to run it as effectively no-win no-fee, or to make an application for public funding knowing that the stat charge will bite on their client.

None of this should be necessary BECAUSE the Statutory Charge just plain and simple should not apply to human rights compensation cases, and particularly not to ones that arose out of care proceedings. Making someone pay out of their compensation for care proceedings that a millionaire would have got for free, and they only have to pay a penny BECAUSE their human rights were breached is just plain unfair and wrong. I don’t see that changing until the Press get outraged about the unfairness of it  or Michael Gove gets JR-ed on it.  Or perhaps a LA appeals a costs order for the entireity of the costs and the Minister gets added as an intervenor on the appeal.

 

 

*Addendum, solution number 5.

 

Judge smiles very clearly and obviously at counsel who had been making the HRA claim and invites them to withdraw it. If so, delivers judgment and says within it that IF had been asked would have found breaches and IF asked about quantum, would have said £x. Pauses after judgment, gives parties a small adjournment for discussions to see if any applications need to be made arising from the judgment, or whether for example an offer might be made an accepted. If Judge told that nothing arising, simply makes no order for costs. Stat charge doesn’t bite because no order for compensation made, and any compensation was achieved in that short adjournment for which nobody charges the Legal Aid Agency a penny for their time. If Judge is told that an application to revive the HR claim is made, then so be it, the LA will likely feel the full force of a costs order because they were too dumb to take a hint.

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Beyond parental control

Posted on May 16, 2016 by suesspiciousminds

Threshold criteria – the legal ‘key’ which allows a Court to make a Care or Supervision Order, is defined by section 31 of the Children Act 1989 and it usually relies on the child having suffered or there being a likelihood that the child will suffer significant harm, as a result of the parent behaving in a way that would be unreasonable to expect of a parent.  There is, however, the much less frequently seen other limb which is that the child is ‘beyond parental control’.

 

There are volumes of reported cases about threshold on the first limb, but very little on the second, so even though this is a Circuit Judge decision and not binding precedent, it is worthy of discussion.

Re P (Permission to withdraw care proceedings) 2016

http://www.bailii.org/ew/cases/EWFC/OJ/2016/B2.html

I’ve written at some length about one of the cases cited in this judgment, Re K, and the facts here are somewhat similar.

Forensic ferrets (or “Standing in the way of (beyond parental) control”)

It relates to adoptive parents of a child, where the placement breaks down, and at much the same time, the relationship between the parents and the Local Authority similarly hits the buffers. (This was the second such breakdown – the child having been placed with different people previously, which makes things even sadder and harder)

In Re P, the Local Authority had issued care proceedings, but by the conclusion of the case were seeking leave to withdraw. That was agreed by everyone, but what was contentious was the basis of that withdrawal. The Local Authority contended that threshold was crossed but it was not in the child’s welfare interests to make an order, whereas the parents contended that threshold was not crossed.

It was common ground that as a result of her life experiences, the child was in a seriously bad way. She had been sectioned, diagnosed with an emotionally unstable personality disorder and had been self-harming. It was in no doubt that she had suffered significant harm. As a factual matter, she was probably beyond parental control. (Whether anyone could have exercised control with those particular difficulties is a considerable question)

The principal legal issue was whether you should approach threshold like this

  1. The child has suffered significant harm AND
  2. She is beyond parental control

Which was how the LA argued it

 

OR

  1. The child has suffered significant harm AND
  2. She is beyond parental control AND
  3. There is some casual link, even if it is not the only or dominant cause, between the child being beyond parental control and the significant harm.

As the parents were arguing.

For clarity, in the first instance, there’s no sense of blame, and in the second, there’s at least some slight degree of blame or responsibility for at least some of the harm.

If the parents have done nothing wrong, and the child being beyond their control is a CONSEQUENCE of her difficulties and the harm she is experiencing, rather than her difficulties and the harm being at least in small part a CONSEQUENCE of her being beyond parental control, then should threshold be crossed?  Can threshold be crossed if a parent has done nothing other than what any parent could have done in the circumstances?

It might have been quite easy for the parents in this case to say “Well, the LA aren’t seeking a finding that we did anything wrong, so let’s just agree threshold is crossed, and accept this plate of fudge” but I think that it raises an important point of principle and they were right to stand their ground.

As the transcript of judgment contains matters that are emboldened, I can’t use my usual approach of putting the judgment in bold, so bear with me. These are the relevant bits of the judgment

 

  1. S.31(2) of the children Act 1989 provides:-A court may only make a care order or supervision order if it satisfied (a) that the child concerned is suffering, or is likely to suffer, significant harm and that harm or likelihood of harm is attributable to…….ii) the child’s being beyond parental control. Mr. Sinclair relies upon the judgment of H.H.J.Bellamy, sitting as a judge of the Family Division in Re:K(Post Adoption Placement Breakdown) [2013]1FLR. where a child had suffered extreme damage in the care of her birth parents, resulting in an attachment disorder; expert evidence concluded that no blame could be attached to the adoptive parents for the child’s difficult behaviour and that the child was likely to suffer significant harm because of her reactive attachment disorder and not because she was beyond parental control.
  4. HHJ.Bellamy referred to the observations of Lord Nicholls in Lancashire v B [2000] 1FLR: ” ….the phrase “attributable” in S.31(2)(b) connotes a causal connection between the harm or likelihood of harm on the one hand and the care or likely care of the child’s being beyond parental control on the other….. the connection need not be that of a sole or dominant or direct cause and effect, a contributory causal connection suffices”. At para. 149 he concluded that if a child suffered significant harm as a result of a disorder which effected her behaviour and as a result of that behaviour the parent is unable to control the child, that lack of control was at the very least, a contributory cause of the likelihood of future harm. Accordingly he made a care order, in the belief that it was not open to him to ward the child. Subsequently the Court of Appeal discharged the care order and made her a ward of court.
  7. Mr. Sinclair urges me to take a similar approach in this case and conclude that the harm caused to T. or likely to be caused to her whilst a result of her mental health diagnosis was/is attributable to her being beyond parental control – at least in part. He has also referred to para.3.1 to the 2008 guidance to the Children Act for the use of local authorities that the court is required to determine as a matter of fact whether a child is beyond parental control and if he/she is it is immaterial who, if anyone is to blame. This paragraph has been omitted from the current guidance.
  10. Conversely , Mr. Parker on behalf of the parents argues that the comments of Lord Nicholls make it clear that the inclusion of the word “attributable” results in the need to make a causal connection between harm and being beyond parental control, albeit it need not be the only or dominant cause; that on the facts of this case, whilst there is overwhelming evidence that T. has suffered and is likely to continue to suffer significant harm, there is no evidence that this is attributable in any way to the fact that T is beyond parental control. He refers to the authorities of Re: O [a minor] (care proceedings: education) 1992 4 All ER 905 and M v Birmingham City Council [1994] 2 FLR 141 Stuart-White as authority for the proposition that lack of control involved parental culpability. Having read these two judgments in my view both learned judges assumed this proposition to be the case. I have also considered Re:L (a minor) Court of Appeal 18.3.1997
  14. Ms. Jones on behalf of T. (who visited me this morning in the company of two members of staff from the hospital, where she is an in-patient), and Ms.Jones pointed out that the guardian (and her predecessor) seriously questioned the actions of the local authority in issuing these proceedings. I voiced that opinion at an early CM hearing and I urged the local authority to consider at a senior level whether these proceedings should continue. Despite the views of the previously allocated social worker in her first and second statements that the parents were not a protective factor for T. and the assertion that the local authority needed to share parental responsibility for T, T’s previous treating psychiatrist was quite clear in the professionals’ meetings that the parents had only ever had T’s interests at heart and were indefatigable in supporting her and trying to obtain the best treatment. At paragraph 30 of Ms.Jones’ skeleton argument she says “It should be made very clear in the judgment that the parents are not culpable in any way, that there is no evidence to support inadequate parenting and that they have shown themselves to be committed parents and advocates for their daughter.”
  17. Under the Children and Young persons Act 1969 the courts had the power to remove a child from the care of his/her parents if it was satisfied that the child in question was beyond parental control. It was not necessary to show serious harm, or likelihood of harm. The Children Act 1989 changed the law and required harm/likelihood of harm to be proved and for it to be attributable to either the care given by the parents, or the child being beyond parental control. In my judgment the ordinary grammatical construction of the section requires the establishment of a causal connection by evidence, however slight. That is lacking in the documents filed in this case and with respect I cannot agree with Paragraph 149 of HHJ Bellamy’s judgment in Re:K (see above). Therefore I give the local authority permission to withdraw these proceedings on the basis that it is unlikely on the current evidence to be able to prove threshold.
  20. There is no evidence of any kind that either the mother or the father are culpable in any way for the behaviour of their daughter and the harm she has suffered or is at risk of suffering in the future. They have fought tirelessly for her to receive the treatment she needs and in my judgment these proceedings should never have been issued.   [underlining mine on this paragraph]

 

There is a broader issue and that was highlighted considerably in the Selwyn 2014 research on adoption breakdowns https://suesspiciousminds.com/2014/04/10/adoption-breakdown-research/  which showed that once adopters came to local authorities with problems or the placement was beginning to show cracks, the supportive element seemed to be frequently replaced with a combative and blaming approach. I don’t know the background and facts of this particular case other than what is in the judgment, but it does seem to me that blame was the last thing that was needed.  I wish this young woman, and her parents, well for the future and hope that she can get the help that she clearly needs and that after this hearing, everyone involved in her life will be able to pull together and work with each other.

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Low level falls and head injuries

Posted on May 16, 2016 by suesspiciousminds

 

This is a case decided by Recorder Howe QC, and it is not binding precedent, and also of course it turns on the individual facts of the case, but it does seem to me to have wider interest and implications on what the medical professionals said about whether a fall from a low level height could cause the sort of bleeding on the brain (subdural haematomas) which are often linked with non-accidental shaking injury.  There was also a skull fracture about a month later.

In this case, the parents account was that the only incident of note was the child, 11 months old, had been standing, holding onto the back of a chair for support and had fallen backwards and banged his head on a laminate floor. The skull fracture they say was caused when the child fell and hit his head on a kerb.

Could that have caused the serious injuries that he sustained?

 

Re N (A child: Low level falls) 2016

http://www.bailii.org/ew/cases/EWFC/OJ/2016/B29.html

Regulars may have picked up that there is a lot of controversy about subdural haematomas and how they might be caused and whether there can, in some cases, be a more benign explanation. The subject even made the national news when Dr Waney Squier was struck off by the GMC for having a view that they considered to be out of step with mainstream thinking.

Here is what the experts said on this case, and I think it is very candid about the limitations of medical science and that the field develops and moves on.  As indicated earlier, much of what is said relates to the very particular set of circumstances of this particular case, but some passages have potential wider interest. I’ve tried to underline these.

 

The Evidence Presented at the Hearing

The Expert Evidence

  1. I have had the advantage of written and oral evidence (by video link) from 3 very experienced experts who regularly provide reports for family and criminal court proceedings. Dr Patrick Cartlidge is a Consultant Paediatrician, a senior examiner for the Royal College of Paediatricians and Child Health and a senior examiner for Cardiff University. Dr Alan Sprigg is a Consultant Paediatric Radiologist based at Sheffield Children’s Hospital with a special interest in the imaging of suspected non-accidental injury involving cranial and skeletal injury. Mr Peter Richards is a Paediatric Neurosurgeon based at The John Radcliffe Hospital in Oxford hospital. All 3 experts maintain clinical NHS practices in addition to their medico-legal work and are very well placed due to their qualifications, years of experience and current clinical work to provide expert opinion concerning the likely causes of the injuries suffered by N.
  2. I have had the advantage of written and oral evidence (by video link) from 3 very experienced experts who regularly provide reports for family and criminal court proceedings. Dr Patrick Cartlidge is a Consultant Paediatrician, a senior examiner for the Royal College of Paediatricians and Child Health and a senior examiner for Cardiff University. Dr Alan Sprigg is a Consultant Paediatric Radiologist based at Sheffield Children’s Hospital with a special interest in the imaging of suspected non-accidental injury involving cranial and skeletal injury. Mr Peter Richards is a Paediatric Neurosurgeon based at The John Radcliffe Hospital in Oxford hospital. All 3 experts maintain clinical NHS practices in addition to their medico-legal work and are very well placed due to their qualifications, years of experience and current clinical work to provide expert opinion concerning the likely causes of the injuries suffered by N.
  3. The 3 experts participated in an experts’ meeting on 11 th February 2016 and the transcript of that meeting is found at E152 of the court bundle. The transcript records a very large measure of agreement between the experts that can be summarized in relatively short form. All 3 experts accepted that the fall described by the parents on 9 th August 2015 could cause the intracranial injuries discovered [the August injury], although such significant injury from a fall from standing would be very unusual. Mr Richards was of the opinion that the significant interference with the functioning of the brain was also very unusual from such a low fall. Despite the unusual features, the experts would accept the account given for the August injury to be a credible explanation.
  4. Concerning the September injury, the experts agreed that no convincing explanation had been given as to how N had suffered this fracture. They were all of the opinion that the explanations offered by the parents were very unlikely to cause a skull fracture and, in the absence of a credible explanation, this was likely to be an inflicted injury. They were all of the view that, as the September injury was more likely to have been non-accidental, when taken together with the unusual features of the August injury, this increased the likelihood of the August injury also being caused by an inflicted event.
  5. When giving their oral evidence, what had appeared to be a large measure of agreement between the experts did, due to the well targeted and effective questions put to them by all 4 advocates, fall away with respect to a number of important matters. This was not, in my judgment, wholly unsurprising given that each expert answered the questions from the perspective of their own particular specialisms and their own clinical and medico-legal experience. However, the divergence of views produced an additional element of complexity to the determination of the local authority’s allegations against the parents in this already complex case.

 

Head Injuries Caused by Low Level Fall

  1. For the local authority to succeed on the primary threshold findings it seeks, it has to prove on the balance of probabilities that the explanations provided by the parents are not how these injuries were caused. It is not for the parents to prove that the injuries were caused by the low level falls that they have described.
  2. When he gave his oral evidence, Mr Richards said the following [my note]: “This is a debate [whether low level falls can cause intracranial injury] that is lively at the moment. I was recently in a telephone conference involving a number of experts. Dr Cartlidge was involved and making a point about these cases and there were some rather heated exchanges about the possibility of low level falls causing serious injury. The vast majority of low level falls are not imaged. Of those that are, neuro-radiologists will say that low level falls, of the type N had, cannot cause multi-compartment bleeding and, therefore, the story given by the parents must be untrue. I, like Dr Cartlidge, say ‘can you say that on the data we have’? I say we don’t know.

A decade ago, apart from the babies that died, it was said that birth did not cause subdural haemorrhages. 3 research projects have now demonstrated that it does and it is now universally accepted that birth causes subdural haemorrhages in about 50% of babies. The medical profession were wrong before. Low-level falls may be similar. We can’t do routine MRI scans of children of this age as they have to be given anaesthetic to keep them still. The reason that these children are not imaged is because the majority just get up from a fall and have no injury. Very few have any disturbance for 1 or 2 days and even fewer for a longer period”.

  1. At paragraph 23 of his report dated 16 th December 2015, Mr Richards said “patients with such low level falls are rarely imaged on the grounds that there is no neurological disturbance from such falls, so we do not really know the number of low level falls which do cause fresh subdural bleeding. In those that are imaged it is extremely rare to identify fresh subdural bleeding.”
  2. In his report to the court, Dr Cartlidge said, at page 19, ” It is probably very unusual for such a short-distance fall to cause subdural bleeding, although I agree with Mr Richards that it could be more common than currently appreciated since neuro-imaging might not be undertaken in such cases. I have professional experience of a similar low-distance fall causing subdural bleeding in two infants (findings of Family Courts). Initial symptoms in my experience are often akin to those seen in reflex­ anoxic episodes.
  3. When he gave his oral evidence, Dr Cartlidge said that children would usually stand with soft knees and if he did have that typical stance, and he had some saving reflexes, he would not perform what Dr Cartlidge described as a ‘matchstick fall’ (a straight fall backwards with a stiff body). Dr Cartlidge was of the opinion that by far the most likely response from a child of this age would be a bending of the knees and a fall onto his bottom. However, Dr Cartlidge went onto describe the circumstances of 3 cases he has encountered in his medico-legal work where the family court accepted that an injury had been caused by an accident or had not found the allegation of non-accidental injury to be proved. The detail given by Dr Cartlidge in his oral evidence was supplemented by a later e-mail that all advocates agreed I should consider. The details of the low-level fall cases referred to by Dr Cartlidge included the following:

1 case involved a 42-week old who fell about 65 cm from a bed. There was a brief acute encephalopathy (interference with the functioning of the brain), subdural bleeding over a cerebral hemisphere and in the posterior fossa (the part of the brain at the top of the brain stem underneath the cerebral hemispheres) and acute traumatic effusion (an acute effusion appears similar to chronic subdural haemorrhage on the initial CT scan (as black fluid) but is due to an acute tear/rent in the arachnoid membrane allowing normal cerebrospinal fluid (seen as black on CT scans) from the subarachnoid space to cross into the potential subdural space. This causes a black fluid collection of cerebrospinal fluid (CSF) in the subdural space due to recent trauma that mimics the appearance of an old subdural haemorrhage from a prior injury). There was subdural blood in the thoracic, lumbar and sacral spine and bilateral retinal haemorrhages. The Family Court found the injuries to be accidental.

A second case involved a 35-week old who fell from standing (about 70 cm). There was acute encephalopathy after initial crying for some 2 minutes and a large subdural haematoma (space-occupying). There were also retinal haemorrhages. The Family Court found the injuries to be accidental.

In the 3 rd case a 52-week old fell from standing (about 70-75 cm). There was mild or possibly absent acute encephalopathy. Subdural bleeding was present over a cerebral hemisphere and in the posterior fossa. Acute traumatic effusion was present. There was subdural blood in the lumbar spine and bilateral retinal haemorrhages. The Family Court found the injuries to be accidental.

  1. I must decide the facts in this case on the evidence that I have heard about this child and not be swayed by comparisons to other cases involving different children and different facts. However, Dr Cartlidge’s purpose in highlighting these other cases was to provide clear examples to support his opinion that children can suffer what he described as ‘nasty intracranial injuries’ when falling from standing.
  2. At page 21 of his report, Dr Sprigg says “Subdural haemorrhages may occur following a known traumatic event involving a significant impact, e.g. being dropped forcibly onto the baby’s head from a significant height or hitting a hard object at speed. In older children they can occur during accidents -eg getting knocked over by a car. They are exceptionally rare from low-level domestic falls in infants. The site of bleed in accidental injury is usually physically related to the site of impact over the cerebral hemisphere. Subdural bleeds in non-accidental injury are more often over both hemispheres and may also be seen in the posterior fossa near the cerebellum near to the craniocervical junction. This is a rare site for accidental trauma”.
  3. At page 13 of his report, Dr Sprigg sets out “the finding of posterior fossa bleeding is more commonly seen in non-accidental head injury (NAHI) but it is recognised in significant accidental impact to the back of the head”.
  4. In his oral evidence, Dr Sprigg told me that the bleeding seen on the scans was consistent with a shake or an acceleration/deceleration event. He said that there was bleeding over both sides of brain and at the base of the brain. His evidence was that this is a pattern that is commonly seen in shaking cases but it can also occur if there is a significant bang to the back of the head.
  5. It was Dr Sprigg’s opinion that the bleeds found on 11 th August 2016 [the August injury] could have happened by a short fall but it would be uncommon. When cross-examined by Ms McFadyen, Dr Sprigg told me [my note]

“A fall to the floor as described is acknowledged as a mechanism that can cause this intracranial injury. Most children would not suffer any injury from such a fall. Some may suffer a skull fracture. It is uncommon to find bleeding over both hemispheres and at the cerebellum but it is possible. If the history had been that he fell on his forehead, I wouldn’t agree that the explanation was consistent but as he fell onto the back of his head, where all the veins gather and is an area vulnerable to injury, it is a credible account. Had this occurred at our hospital, it would have been said that this was feasible”.

  1. Having heard all 3 experts give their oral evidence, I formed the clear impression that they were each open to the real possibility of such low level falls, of the kind described by M and F as occurring on 9 th August 2015, causing the intracranial injuries seen on the 11 th August scans. Indeed, Mr Richards and Dr Cartlidge were more open to this kind of mechanism being an accurate account for the causation of such significant bleeding than they would have been in years past. There was no hint of dogmatism from any of the 3 experts; they were open to considering both the rare and the unusual.
  2. Mr Richards, Dr Cartlidge and Dr Sprigg carried this openness to considering the unusual and rare through to their consideration of the potential causes of the skull fracture discovered on 14 th September.
  3. In his report dated 24 th November 2015, Dr Sprigg provides a detailed account of the possible causes of skull fractures. He describes:

“A skull fracture is commonly due to a forceful impact. This may be due to the head hitting something hard, or a hard object hitting the head with significant force. An infant may have an accidental skull fracture but this depends on its level of mobility. For example, a two month old baby is not sufficiently mobile to self inflict a skull fracture, but a ten-month old that is crawling and falls downstairs might self inflict a skull fracture. An infant’s skull is flexible and tends to bend rather than fracture. It takes significant force to fracture an infant’s skull. As a generalisation under 1-2% of infants will sustain a skull fracture if they are dropped from below adult waist height. However, if the fall is from a greater height this is more likely to produce a fracture than a low level fall. When the fall is onto a hard surface (eg concrete or laminate flooring) versus a more compliant surface (eg carpet with under-felt over floorboards) then the harder surface increases the chance of fracture. A free fall (drop) involves less force of impact than if a baby is thrown down. Occasionally skull fractures occur related to birth. They are uncommon, but have a higher incidence in a difficult forceps delivery than ventouse or than in normal vaginal delivery of a normal sized baby”.

  1. When he gave his oral evidence, Dr Sprigg was of the opinion that either fall described by M (from sitting or from standing) [the September injury] would be unlikely to cause this skull fracture but could not be excluded as impossible. When answering questions from Ms McFadyen, he told me “If this was an isolated event and the history was that he had fallen over to the right and had come straight into casualty, it would be accepted as an accidental event. There is a skull fracture rate of below 1 to 2 % if a fall is from below adult waist height but had he been presented quickly with a consistent history, the explanation might have been accepted”.
  2. Mr Richards’ mind was similarly open to the possibility of the fall as described by M being a possible cause of the skull fracture. He told me that a low level fall would be unusual for causing a skull fracture and a drop of about 82 cm is usually required to cause a fracture from research undertaken with deceased infants. However, he would not rule it out as impossible but it would be a very rare event.
  3. Similarly, Dr Cartlidge would not rule-out any event as being impossible but was more sceptical that the simple fall, of either type described by the mother, would cause a skull fracture. It was put to him that it may have been that N fell and hit his head on the kerb. When considering this scenario, Dr Cartlidge said [my note] “the right side of the head is the site of the fracture. The shoulder is in the way and for the shoulder not to be in the way, I struggle to see how the right side of head would bear the full brunt of the force of the fall but if you get over that and the head pivots over his neck and hits the edge of the kerb, that could cause the fracture”. That was about as close as Dr Cartlidge would be drawn toward accepting that the fall described was, of itself, a possible mechanism.
  4. Having considered the fall proposed for the September injury in isolation, each expert relied on important contextual facts as indicating that the fall described on 6 th September 2015 would not have caused the fracture to N’s skull.
  5. Establishing a timeframe for the causation of the skull fracture and identifying whether the evidence reasonably excludes the 6 th September, a date some 8 days before the fracture was discovered on the scans as a day within that timescale, is a crucial matter for the court to consider when determining whether the local authority has proved that this alleged fall was not responsible for the skull fracture.
  6. When looking at the timing of skull fractures, there was no dispute between the experts as to limits of radiological evidence. Dr Sprigg described in his oral evidence that once a skull fracture is present, it can be seen for 3 to 6 months on the x ray, as there is no healing periosteal reaction. He said that the fracture can only be said to be recent if there is swelling present over it and that swelling is present for around 7 to a maximum of 10 days. The identification of scalp swelling, what type of scalp swelling was present and how long a swelling would be present became an issue between the experts upon which they did not agree.
  7. In addition to the identification of swelling, all 3 experts agreed that the clinical presentation and the clinical history was crucial in identifying a reliable timescale for the causation of a skull fracture. The immediate pain reaction of a child was a matter upon which the experts agreed however, the duration of a visible pain reaction when touching the site of injury, and its relevance to the timeframe for the injury, was not a matter upon which Mr Richards and Dr Cartlidge agreed.

 

In this case, the threshold was found to be satisfied in relation to the skull fracture in September 2015 (changed from previous inaccurate year on my part), the evidence of the parents being a relevant factor and the lies that they were found to have told about various matters.

 

There was not a finding that they had caused an injury in August by shaking the child and the Judge was satisfied by the parents explanation for this injury.

141.                      As already described, N was admitted to hospital on 9 th August 2015. M and F gave an account of him falling and hitting his head. The treating doctors at Birmingham Children’s Hospital accepted that the fall described was an acceptable explanation for N’s presentation.

  1. I have heard evidence from Mr Richards, Dr Cartlidge and Dr Sprigg and all 3 experts would accept that the fall described could account for the subdural bleeding found.
  2. Mr Richards says at §2.4 on E66 that there was no evidence of impact either clinically or on neurological imaging and he thought that unusual given that N’s behaviour was disturbed for so many days. He also thought it very unusual that such a low fall would, of itself, cause such significant symptoms. In his oral evidence he said subdural haemorrhages can have no symptoms at all and those seen on N’s scans were very thin and not compressing the brain. He said there was no other brain injury so, would not expect the haemorrhages to cause any symptoms at all, the symptoms have come from the way the brain was functioning and it was not functioning right with for 5 or 6 days. It was Mr Richard’s opinion that such a level of disturbance would require a harder bang on the head. He said that he would only expect to see disturbance of brain function of 24 to 48 hours so disturbance for longer would be consistent with a harder level of force. He said it was very very unusual if this was caused by this the low level fall.
  3. Dr Cartlidge and Dr Sprigg in the expert’s meeting on 11 th February and in their oral evidence acknowledged the unusual features of the case as outlined by Mr Richards but all 3 experts accepted the fall described as a possible mechanism for N’s presentation.

 

 

       I understand the approach taken by the experts that the unsatisfactory nature of the explanation given by the parents for September injury increases the likelihood of the August injury being an inflicted event. However, I have had the advantage of seeing MK give evidence. This was a witnessed fall and not, in my judgment, an event that has been invented. I find that there is no evidence of any other intervening event that has caused this injury and the local authority is simply speculating that M must have injured N at some point overnight or during the day on 10 th August. N’s presentation was consistent with a pattern recognised by Dr Cartlidge and although the experts could not exclude a 2 nd event, they were of opinion that one event was the most likely explanation. I accept their expert opinion and find that the one event that was witnessed by MK caused this August injury.

 

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Something something oranges something part 2

Posted on May 16, 2016 by suesspiciousminds

 

You may recall the recent Holman J case in which a 16 year old subject of care proceedings had told the social worker and Guardian something personal which he did not want his parents to know, and the social worker and Guardian were divided as to whether this was something which could legitimately be kept from the parents

 

Something something oranges something

The application, this time with the parents represented, was decided by Mrs Justice Roberts.

Local Authority X v HI and Others 2016

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/1123.html

It raises some interesting questions.

The Court was aware of what the information was, as were the social worker and the Guardian. The mother and father did not know what it was. All of the barristers knew the information, having agreed (upon instructions from their clients) that they would know it but not share it with them.  It is almost impossible to fathom what the parents counsel were supposed to do if the parents were making guesses as to what it might be – save for just being plummy and saying “I can’t indulge in speculation”

The parents, who were the only people in the room who didn’t know what their son’s personal information was,  really then had to work on the basis of Holman J’s categorisation of the information

  1. As to the substance of the information which I has shared, it was described by Holman J in an earlier judgment[1] in this way:-
    1. “Relatively recently, the child concerned imparted some information to a social worker, which he has repeated also to the guardian. I stress that the information does not relate or pertain at all to either of his parents or his stepmother, but relates and pertains essentially to himself. Nothing in the information is in any way critical of anything done or not done, or said or not said, by either of his parents or his stepmother. The child himself has said very strongly that he does not wish either of his parents or his stepmother to know the information in question. The guardian considers that that confidentiality should be respected and that the information should not be disclosed or revealed to either of the parents or the stepmother. The local authority are very mindful and respectful of the confidentiality of a 15-year old child who is in their care, They do not consider that, realistically and objectively, the information could or should affect any issue at the forthcoming final hearing of the care proceedings. But they do consider that if one or other or both parents did know the information, one or other or both of them might wish to seek to deploy it in some way as part of their case in the care proceedings.” (The emphasis is mine.)

The argument came into these two camps

A) The Guardian arguing that just as a doctor has a duty of confidentiality to a young person who has capacity (see Gillick) so do a social worker and Guardian have a similar duty if a young capacitous person tells them something and says that they want it to go no further.  (also relying on the  PD v SD, JD and X County Council [2015] EWHC 4103 (Fam).  which was the young person who wanted to undergo gender reassignment and did not want his adoptive parents to have any detailed information)

Thus, on the Guardian’s case as advanced by Dr Bainham, the duty of confidentiality which was found to exist as between a Gillick competent child and a doctor or other medical professional advising on, or offering, medical treatment would necessarily be extended so as to cover social workers and other professionals engaged with the young person concerned.

B) The Local Authority and the parents arguing that that was correct IF the case was not in Court, but once there were Court proceedings, the Article 6 right to fair trail would outweigh such a right to confidentiality, unless there were compelling circumstances.

  1. Specific guidance in relation to the obligations on a local authority in care proceedings was provided by Lord Mustill in the leading case of Re D (Minors)(Adoption Reports: Confidentiality) [1996] AC 593. At page 615 D to H, his Lordship set out five principles with which the members of the full court were in agreement.
    1. “1. It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party. This principle applies with particular force to proceedings designed to lead to an order for adoption, since the consequences of such an order are so lasting and far-reaching.

2. When deciding whether to direct that notwithstanding rule 53(2) of the Adoption Rules 1984 a party referred to in a confidential report supplied by an adoption agency, a local authority, a reporting officer or a guardian ad litem shall not be entitled to inspect the part of the report which refers to him or her, the court should first consider whether disclosure of the material would involve a real possibility of significant harm to the child.

3. If it would, the court should next consider whether the overall interests of the child would benefit from non-disclosure, weighing on the one hand the interest of the child in having the material properly tested, and on the other both the magnitude of the risk that harm will occur and the gravity of the harm if it does occur.

4. If the court is satisfied that the interests of the child point towards non-disclosure, the next and final step is for the court to weigh that consideration, and its strength in the circumstances of the case, against the interest of the parent or other party in having an opportunity to see and respond to the material. In the latter regard the court should take into account the importance of the material to the issues in the case.

5. Non-disclosure should be the exception and not the rule. The court should be rigorous in its examination of the risk and gravity of the feared harm to the child, and should order non-disclosure only when the case for doing so is compelling.”

 

Obviously an important issue to resolve – young people do tell social workers and Guardians things, and sometimes they would prefer that their parents did not know. If the Guardian is right here that the approach should be in line with Gillick, then the decision would be made by the individual social worker and Guardian, and if not, the decision would be made by the Court, with non-disclosure being the exception and not the rule.

 

In the context of the present application, it is important to state that the information in respect of which I seeks to maintain privacy is not information which will have a bearing on any evaluation undertaken by the court in relation to the issue of whether or not the care which the second and fourth respondents have given, or may give in future, to I is likely to cause him to suffer significant harm such as to justify the making of a final care order. In my judgment, it will have no bearing whatsoever on any judicial investigation into the quality of the care they have provided in the past or the care they are likely to offer to I in the future in terms of the sort of care it would be reasonable to expect a parent to provide. Further, the local authority accepts that the information has not, and will not, affect or influence their decision-making for I in terms of the final care plan which is now before the court.

 

It would be very difficult to withhold from the parents information which went to whether a particular allegation in the case was true or false, or where the child was expressing a view about where his future home should be, but in this case, the Court was saying that the information was personal and not something that would have any bearing on the outcome of the case.

Father’s counsel disagreed,

  1. In his written skeleton (para 117), Mr Day on behalf of I’s father says that his client wishes to utilise the material at the forthcoming final hearing. He raises concerns that I “will become involved [in] gang culture and criminality and that corporate care will not be in his best interests. The sensitive information very much supports and grounds that contention and is required for there to be a fair trial.”
  4. With respect to Mr Day (who knows the nature of the confidential information), I can see no correlation at all between the information which I has imparted and the likelihood of his becoming involved in gang culture or the sort of criminality which is sometimes associated with such involvement or membership. The link between the two is not even tenuous in my judgment. Furthermore, the statement of intent to use the information at the forthcoming trial is made in an evidential vacuum. As matters stand, I’s father does not know anything about the information and he will not know unless and until the court authorises its disclosure. Mr Day seeks to widen the ambit of his assault on confidentiality by asserting that the material is relevant to that part of his client’s case which relates to an allegation that the local authority will not provide appropriate care for I if a final order is made. It seems to me that this is a matter for the trial judge who will be responsible for scrutinising with the utmost care the final plan advanced by the local authority.

 

What was the right test? And was the information relevant?  The Judge decided this

 

Analysis and Discussion

  1. The local authority was absolutely right to make this application. In my judgment, Holman J was also absolutely right to rule that the matter must come back to be dealt with on notice to the respondents.
  4. In terms of the correct approach to the issue of disclosure, I do not accept that I can consider issues flowing from I’s ‘personal autonomy’ in a vacuum. In my judgment, Mr Day is correct on this point. Gillick and Axon were both cases which did not involve any consideration of the engagement of Article 6 rights. In each, the applicant was seeking declaratory relief but no more. In this case, both Article 6 and Article 8 rights are engaged and accordingly the Re D test must form a part of the overall balancing exercise which I have to perform. However, it seems to me that the principles to emerge from Gillick and Axon become relevant at the stage of the balancing exercise where judicial focus is on the welfare of the child or young person. Respect for his or her views and the consequences of overriding those views where they are genuinely and strongly held must, in my judgment, form part of those welfare considerations.
  7. Dr Bainham makes the valid point on behalf of the Guardian that if Gillick principles are not accorded priority, any ‘looked after’ child in these circumstances would be at a disadvantage since his views would be accorded less respect because of the fact that he is at the centre of contested care proceedings. Whilst I can see the force of that submission, it does not in my judgment mean that I can disregard the equally important considerations which flow from the engagement of the respondents’ Article 6 rights. I’s views are important. They are entitled to considerable respect but they are one aspect of the overall balance which has to be achieved in this case. In my judgment, they are not determinative of outcome. Further, the fact that neither of his parents is currently exercising day to day parental care for I does not dilute the parental responsibility which they currently share with the local authority.
  10. The first question which must be addressed is that of relevance. Nothing which was said by I impinges upon, or affects in any way, the local authority’s case in relation to the respondents’ allegedly deficient parenting. On behalf of the local authority, Mr Krumins submits that it is important to distinguish in this context between the relevance of the information and the weight which can properly be attached to it. In relation to relevance, he contends that the threshold is low. Nevertheless, he concedes that the information is unlikely to assist the trial judge and will ultimately make no difference to outcome. I bear in mind the observation of Thorpe LJ in Re M (Disclosure) that if there is anything within the local authority’s care plan which gives rise to concerns, that may well be adverse to the respondents’ case should disclosure be withheld. However, where the principal challenge to, and defence of, the care proceedings amounts to a denial by the second and fourth respondents of the poor parenting which gives rise to the perceived risk of significant harm to I, it is difficult to see how a care plan which involves removal from that harmful environment can be said to raise independent concerns. That will be the central issue for the trial judge to determine.
  13. I have significant concerns about whether or not the information for which protection is sought is truly relevant to these proceedings. Whatever subjective views Mr Day may seek to advance on behalf of I’s father, it is difficult to see how any objective analysis of the information could lead to the conclusion that it has any relevance to the issues to be determined later this month. However, for the purposes of my judgment and on the basis that Mr Day is right and it has some tangential (or greater) relevance, I must go on to apply the balancing test set out in Re D.

 

Having decided to approach the matter on the Re D principles, the Judge went on to consider whether disclosure would present some risk of significant harm to the child

 

  1. Thus, the next question to be answered is whether disclosure of this information would involve a real possibility of significant harm to I.
  4. The Guardian and the local authority are not agreed on this aspect of the case. The local authority accepts that disclosure would be likely to expose I to an awkward and embarrassing situation, but no more. Within the material which has been put before the court is a statement prepared by a social worker on behalf of the local authority. It is dated 8 April 2016. In that statement, the social worker, AB, expresses the view that I may be embarrassed or ashamed as a result of disclosure. However, she acknowledges, too, that he may in future be reluctant to share information with professionals if the information is revealed to his parents against his wishes. Her statement also raises an issue as to whether what he said was true in any event.
  7. The concerns of the social worker find strong reflection in the Guardian’s evidence. She tells me that, knowing what she does about I’s father and step-mother, she believes neither ‘would … be able to respond to the information in a child-centred way at all, and that this could have emotionally devastating consequences for [I]’. She sets out in her evidence a report which she had received from a colleague who was present at a recent LAC review which was attended by I’s father and step-mother. One of the issues for discussion on that occasion was their willingness to engage in some work with an appropriate professional in order to assist their understanding of I’s needs. Their presentation on that occasion was said to be “extremely oppositional, even in [I’s] presence”. The report which emanated from that meeting is recorded in the body of the Guardian’s statement in this way.
    1. “It was appalling … [I’s father] totally took over, attempting to intimidate the professionals, leading to … [I] putting on the hood of his jacket and pressing his forehead onto the table in what appeared to be a combination of anxiety, frustration and sheer embarrassment. His wife [I’s step-mother] then started a wholly inappropriate and crass attack on the social worker – how can she do the job at her age, not having children. Basically, following father’s continued ranting and finger-pointing at me, I had no choice but to prematurely bring the review to an end. I’m far from convinced that the LA should be promoting contact for [I] with them. Before there can/should be any relationship work undertaken, perhaps father in particular should be advised to see his GP regarding having anger management and/or counselling. He certainly won’t be invited to the next review unless he makes some radical changes.”
  9. The Guardian expresses her very real concerns that the good relationship which I has managed to establish with his social worker and foster carer may be damaged by disclosure of the information which he wishes to keep private. Those relationships are important to him because they enable him to confide in these professional carers and, in turn, to receive appropriate support and guidance. To override his express wishes may undermine his trust in professionals making it difficult for them to offer the level of help and support from which he has so clearly benefitted to date. This would be entirely counter-productive and inimical to his best interests. She has no confidence in either the father’s or step-mother’s ability to respond appropriately or sensitively to something which I regards as a personal and embarrassing episode and she regards the prospects of disclosure as being ‘highly detrimental’ to his welfare.
  12. Thus, it seems to be common ground that disclosure to the parents will cause I emotional upset and some distress. The disagreement centres on the level of emotional harm and whether or not this is likely to be “significant”.
  15. On behalf of the father, Mr Day submits that “the worst reaction could be that the father is dismayed, disappointed and at worst may remonstrate with his son”. On behalf of I’s step-mother, Mr Fletcher reminds me that I has been told by his social worker that it is not possible for her to provide him with a guarantee that anything he tells her will remain private as between them. He points to the absence of any direct statements by I himself as to his fear of his parents’ reaction. He invites me to consider whether any perceived harm could be mitigated by putting in place safeguards so as to ensure that I was protected from any such reaction from his father and step-mother as that anticipated by the Guardian.
  18. I have to bear in mind that I is a very vulnerable young man. He is not yet 16 years old and has already been the subject of two separate sets of care proceedings. He has been found to have suffered neglectful and abusive parenting at the hands of his mother. His experience of life was fractured when he left his home with her to live in a completely different part of the country with his father and step-mother. His unhappiness and distress in that placement is reflected in his attempts to abscond and his absolute resistance to any return to that household and any form of continuing relationship with his father and/or his present wife. Whilst I accept that it is an untested account, I regard the record of what transpired at the recent LAC review as providing a valuable insight into what I is likely to be experiencing at the present time in terms of the conflict which appears to exist between his family and the professionals who are currently caring for him. The picture of I which emerges from the record of that meeting is one of a young man who has few, if any, coping strategies for dealing with that conflict. I do not accept that the absence of a specific reference by I to fear of his father’s reaction should lead me to a conclusion that he has no such fear. On behalf of the mother, Miss Bartholomew supports the Guardian’s position that there is a real risk of further significant harm to I in the event of disclosure. She records in her written submissions the mother’s historic and ongoing concerns about the aggressive and inflexible behaviour demonstrated by his father. She is concerned that his reaction to the information may well place I at risk of significant harm.
  21. In my judgment, whether one applies the label of “significant” or “real” harm to the question, there is indeed a real possibility of significant and detrimental harm to I if this information is disclosed. In his evidence in response to the local authority’s case, I’s father has denied entirely that his son is suffering, or has suffered, from any significant emotional harm. He accepts that he has shouted at I but justifies this on the basis that, “If you don’t stand up as a parent, the children are going to walk on you”. It is said that he referred to I in highly derogatory terms because of his educational difficulties. He does not admit using any such inflammatory terms but still refers to I in his statement as “this little boy”. I am satisfied that there is a clear risk that the consequences of disclosure of this material may well result in I’s disengagement from the professionals who have provided him with guidance and support since his reception into care. He has been damaged by his experience of family life in recent years and findings in relation to threshold have already been made in the context of the interim care order which sanctioned his removal from his father’s home. If his current support structure were to be put at risk for any reason, he may well withdraw and internalise issues thereby putting his happiness and future wellbeing at significant risk.
  24. I bear in mind, too, that whether or not the trial judge makes a final care order at the conclusion of these proceedings later this month, any prospect of repairing the relationship between I and his father will inevitably have to involve some form of therapeutic input from an appropriate professional or professionals. In this respect, it is essential that I believes that he can repose trust and confidence in those professionals and the care and support they will be providing. It would be harmful to him, and significantly so, if the chance to restore some form of relationship between parent and son in future were jeopardised because of a disclosure now of information which he regards as confidential.

 

The next step was to balance the article 6 rights and article 8 rights.

 

  1. In these circumstances, the final step is to weigh the interests of the respondents in having the opportunity to see and respond to the material. This involves a rigorous consideration of the engagement of their Article 6 and Article 8 rights.
  4. Given what I have already said in my judgment, I can dispose of the issue in relation to their Article 8 rights in fairly short order. These rights, whilst engaged, cannot take precedence over I’s Article 8 rights and he is clearly expressing a wish for no communication with his father or step-mother at the present time. As Yousef makes clear, the child’s rights are the paramount consideration in any balancing of competing Article 8 rights.
  7. As to the respondents’ Article 6 rights, the relevance of the information to outcome has already been addressed. In my judgment, it is of tangential or minimally indirect relevance at its highest and is completely irrelevant at its lowest. The local authority accepts that it will not impact upon outcome or future planning for I. The respondents’ rights to a fair trial are, of course, absolute but, as Lady Justice Hale acknowledged in Re X, in deciding how to conduct a fair trial, it is perfectly reasonable to take account of the facts and circumstances of the particular case with which the court is dealing. The concept of a fair trial is inviolable but the content (including the evidence) which is placed before the court is flexible and depends upon context and the issues with which the court is dealing. Whilst I accept that any departure from the usual requirements in relation to the disclosure of evidence in an adversarial trial must be for a legitimate aim and proportionate to that aim, the Court of Appeal has held that protecting the welfare of vulnerable young persons is a specific and undoubtedly a legitimate aim.
  10. In my judgment, the harm which would be caused by disclosure of information which has very little, if any, relevance to the issues which need to be determined by the court would be wholly disproportionate to any legitimate forensic purposes served. I am entirely satisfied that depriving the respondents of the opportunity to have this information will not deny to any of them a fair trial. Disclosure would, however, be a breach of I’s Article 8 rights.
  13. Considering all these matters in the round, I have reached the clear conclusion that the case for non-disclosure of the information which is the subject of the Guardian’s current application is compelling. The circumstances of this case, looked at in the round, do make it exceptional and I regard it as entirely necessary that I’s confidence and privacy in this information is maintained. I cannot overlook the fact that, as a Gillick competent young person, he has expressed in the clearest terms his wish that the family should not have access to the information. Those wishes deserve the court’s respect, albeit in the context of the overall balancing exercise which I have conducted

 

This particular passage has some broader significance – the right to a fair trial does not mean that a person gets to run the case exactly as they please, the Court controls the content and nature of the hearing whilst still having the duty to secure that the trial is FAIR

 

The concept of a fair trial is inviolable but the content (including the evidence) which is placed before the court is flexible and depends upon context and the issues with which the court is dealing

 

Finally, the Judge recognised that the parents knowing that something was being kept from them (even if most of us can guess what it might be) was difficult

 

Finally, I would conclude by echoing the words of Holman J which are exquisitely apt in this case. I, too, am deeply conscious that whenever disclosure issues of this kind arise, there is inevitably a problem once parents or other interested respondents are put on notice that there exists some information in respect of which the court has supported an application for non-disclosure. As Holman J observed, ‘”conspiracy theory” and imaginings may inevitably take over’. The parents and step-mother may well be concerned that the information is graver than it actually is. I would hope to reassure them by my finding in relation to the likely relevance of the information to the issues which are at stake.

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Megalomania and physics

Posted on May 5, 2016 by suesspiciousminds

I did a sort of interview thing for This Lawyer’s Life last week, and it occurred to me that some of my readers might not have seen it, so here is the link.

Monday Man : This Lawyer’s Life: Andrew Pack aka Suesspicious minds

There was originally a photograph of me on the piece, but I soon got rid of that. I could not be responsible for bills for cracked laptop and ipad screens.

 

This Lawyer’s Life is a great site anyway – it’s like Grazia for lawyers, but with less Jennifer Anniston (and probably about the same amount of Amal Clooney)

 

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Woman who sparked versus Magical Sparkle Powers

Posted on April 28, 2016 by suesspiciousminds

You might remember this Court of Protection case

A life that sparkles

where a woman was found by the Court of Protection to have capacity to refuse medical treatment, even though doing so would be likely to bring about her death. The woman had some unusual (though capacitous) ideas about how she wanted to live, and she preferred to leave life whilst she still felt glamourous and sparkling, rather than to limp on in life and eventually fade away. It was an interesting case, with a lot to debate. As a result of this decision, she did die, leaving three children, one of whom was still a minor. Very sad case.

Sadly, some of the mainstream Press, having spent years sobbing outside the doors of the Court of Protection wanting to be let in to report responsibly, rather let themselves down, with the reporting they carried out

 

 

  • The application came before me on 9 December 2015. In summary, the statements filed in support of it show that:

 

i) V and G have been distressed by having to be involved in the COP proceedings, and by the extensive media interest in the information about C and their family that was provided to the COP, which appears to them to have been precipitated not only by a wish to report and comment on the bases on which the COP reached its decision but also to attract prurient interest in their mother’s sexual and relationship history (including her relationship with her children V, G and A).ii) At the time of the hearing before MacDonald J, neither V nor G anticipated the possibility that C and her family would be named in the press and that photographs of them would be published. Their attention was entirely taken up with the decision the COP was required to make and its implications.

iii) C’s youngest daughter, A, is a teenager who was already suffering from fragile mental health which has manifested itself in her physical conduct. The suicide attempt of her mother and her subsequent refusal of life-sustaining treatment despite A’s request to her to accept treatment, with which A had a direct and stressful involvement, have understandably had an appalling impact on A’s emotional and psychological wellbeing.

iv) A has already been negatively affected by the media coverage of the family, despite attempts by her father to shield her from it. Inevitably, A has now been told about certain very limited aspects of the COP’s reasoning, including negative descriptions of her mother’s character, which have upset her further. A’s father and one of her teachers are sure that if her mother is named, this will have an even more serious effect on A’s mental wellbeing and her ability to cope at school. V also asks the court to have regard to the serious risks of harassment of A not only directly from people around her, e.g. at school, but also on the internet including and in particular through social media.

v) There have been numerous attempts by journalists to contact the family and people with a previous relationship with C and her children.

vi) Family photographs have been obtained and published in a pixelated form.

 

  • Before the reporting restrictions order was extended:

 

i) At around 5.30 pm on Wednesday 2 December 2015 a reporter from the Daily Mail went to the home of A’s father (an ex-husband of C) where A lives. A answered the door and without saying who she was the reporter asked to speak to her father using his name, V asked who she was and was told that she was a journalist from the Daily Mail, A’s father came downstairs and the journalist asked if he would talk to her about his ex-wife. He refused and the journalist left.ii) On the evening of 2 December 2015 a reporter from the Mail on Sunday was asking questions about C in one of the pubs in the village where A and her father live. This was reported to V by friends in the village.

 

  • More generally, the evidence indicates that on unspecified dates (a) the Daily Mail and the Sun contacted C’s third ex-husband in America, and (b) a journalist went to see the husband of the housekeeper of flats where G had once lived seeking G’s current details on the basis that he was writing a memorial piece about G’s mother and was sure that G would want to speak to him. During his visit he opened C’s Facebook page.
  • Some of the coverage contains pixelated photographs of C, V and G. It is plain that some of these photographs have been chosen as photographs that emphasise the aspects of the published accounts that are of prurient interest and there is at least a risk, particularly in respect to C, that she would be recognised by some people.
  • Examples of reporting in the Times (4 December), the Daily Mail (6 December) and the Sun Online (6 December), are highlighted by V:

 

i) the Times ran a pixelated photograph of C on its front page with a caption “Voluntary death. The socialite allowed to die at 50 rather than grow old had a narcissistic disorder, doctors said. A court ruling blocked her identification. Page 7”. The article at page 7 was under the headline: “I won’t become an old banger” there was a further pixelated photograph of C standing by a car and a pixelated photograph of one of C’s adult daughters,ii) the Daily Mail at pages 26 and 27 published the same pixelated photograph as that on the front page of the Times and the article had the headline: “Revealed: Truth about the socialite who chose death over growing old and ugly —- and the troubling questions over a judge’s decision to let her do it”. Near the end of the article it is stated: “For the husband and daughters she leaves behind, the manner of her death is heartbreaking”, and

iii) the Sun Online has two headlines: “Mum who fought to die was “man eater obsessed with sex, cars and cash” and “A Socialite who chose to die at 50 rather than grow old was a “man eater obsessed with sex, money and cars”, a pal claimed yesterday” and published two pixelated photographs of C at a younger age each showing her with a drink in hand. In one in which she is wearing a low-cut party dress and in the other she is raising her skirt, standing by a vintage motor car and wearing what appears to be the same outfit as she is wearing in the photograph on the front page of the Times and in the Daily Mail.

 

There’s an old Aesop fable about a frog and a scorpion. The scorpion wants to cross a river and asks the frog if he can ride across on the frog’s back. No, the frog responds, you’ll sting me and I’ll die. Wait, says the scorpion, if I was foolish enough to sting you whilst we were crossing, we’d both die – you from the sting, but I would drown, so it won’t be in my interests to sting you. The frog agrees. Midway across the river, the scorpion begins stinging the frog. The frog shouts, if you keep doing that, we’ll both die. The scorpion says, I know, but it’s in my nature.

 

frog-scorpion

It really isn’t in the longer term interests of the Press to sting the frog of transparency by using that additional access to behave so irresponsibly and despicably, but it’s in their nature.

Anyhow, this is Charles J’s decision on the Reporting Restriction Order.

V v Associated Newspapers Ltd 2016

http://www.bailii.org/ew/cases/EWCOP/2016/21.html

 

The first law Geeky point, hence the title, is what jurisdiction the Court of Protection have to make a Reporting Restriction Order. The argument goes like this :- (a) The Court of Protection exists to determine whether a person has capacity, and if not, what is in their best interests and you have already ruled that this woman HAD capacity, so your involvement stops and (b) as she is now dead, whatever jurisdiction you had over her affairs is now gone. Decent points.

Charles J concluded that the CoP did still have jurisdiction, and in any event, if they don’t, then the High Court will just use Magical Sparkle Powers (TM)

 

  • I have concluded:

 

(1) The COP has jurisdiction after the finding that C had capacity and her death to make the reporting restrictions order sought by the Applicant but insofar as it may be necessary or appropriate I will also make it as a High Court judge.

There is a longer answer here:-

Jurisdiction of the COP to make a reporting restrictions / anonymity order after it has determined that C had capacity and/ or after C’s death

  • As I have already mentioned this jurisdictional point is raised by the media Respondents but they do not resist me making an injunction as a High Court judge. They base the argument on the finding of capacity made by MacDonald J. The Applicant addresses the relevant jurisdictional effect of this finding and of C’s death.
  • The media Respondents rely by analogy on In re Trinity Mirror Plc and others [2008] QB 770 concerning s.45(4) of the Supreme Court Act 1981 which provided that in “all other matters incidental to its jurisdiction” the Crown Court was to have the like powers, rights, privileges and authority as the High Court. The Court of Appeal held that the Crown Court has no inherent jurisdiction to grant injunctions and that unless “the proposed injunction is directly linked to the exercise of the Crown Court’s jurisdiction and the exercise of its statutory functions, the appropriate jurisdiction is lacking”.
  • Section 47 of the MCA is worded slightly differently and provides that: “the court has in connection with its jurisdiction the same powers, rights, privileges and authority as the High Court”. It is generally accepted that the COP does not have an inherent jurisdiction so the issue is whether it can grant an injunction because it is exercising that power “in connection with its jurisdiction“.
  • At the time that the reporting restrictions order was made in this case by Moor J, sitting as a judge of the COP, I consider that it is clear that he was making that order in connection with the jurisdiction of the COP to determine initially whether or not C had capacity. In my view, it follows that he could in reliance on s. 47 have made that order for a period extending beyond any finding made that C had capacity, or the death of C (as to which see further below), if he had thought that that was appropriate. He did not do so.
  • The effect of the argument of the media Respondents is that if the hearing on 13 November 2015 had been before a judge, other than a High Court judge (which is not the practice in serious medical treatment cases but could occur in other cases) that judge having determined and announced his decision that C had capacity as a judge of the COP had no jurisdiction to continue, vary or discharge the injunction granted by Moor J. To my mind, that would be an unfortunate and odd result particularly, for example, if C had asked for it to be discharged. However, in my view, it does not arise because I consider that the termination, continuation or variation of an injunction made by the COP in the exercise of its jurisdiction conferred by s. 47 would also be within the jurisdiction so conferred as being “in connection with its jurisdiction”.
  • However, by its terms the injunction that was granted by Moor J expired on the death of C and so the present application is for a new injunction that was made at a time when for two reasons the COP no longer had jurisdiction over C and was therefore functus officio.
  • The Applicant points to a number of sections in the MCA which give the COP jurisdiction to make orders in respect of persons whether they have or lack capacity (see ss 15 (1)(c), 21A, 23 and 26(3)) but, in my view, this does not provide an answer because in this case the COP was not exercising jurisdiction under any of those sections.
  • To my mind the question on this application is whether the COP has power to grant a new injunction because it relates to proceedings that were before it although by reason of its decision and/or the death of P it no longer has any jurisdiction to make the welfare order sought. The answer is determined by considering whether in those circumstances it is exercising a power “in connection with its jurisdiction“. In my view the answer is that it is. This is because, in my view, the nature and extent of the relevant Article 8 rights relied on flows from the existence of the earlier proceedings before the COP, in which it exercised its jurisdiction and I see no reason to construe s. 47 to limit the power it confers to the period during which that jurisdiction continues to exist over the subject of the proceedings.
  • Indeed, I agree with the Applicant that the principle that legislation should be interpreted so far as possible to be compatible with Convention rights supports this conclusion because:

i) it promotes the grain of the legislation (the MCA), andii) it enables the court best placed to carry out the balancing exercise between competing Convention rights to perform that exercise.

  • That grain links back to the points I have already made that the jurisdiction of the COP invades not only the life of its subject P but also on many occasions the lives of others and in particular P’s family members.
  • Conclusion. I can make the injunction sought as a judge of the COP and I do so. However to avoid any jurisdictional argument in the future, and if and so far as this is necessary, I also make it as a High Court judge exercising the jurisdiction of that court.

 

The central issue here was whether the Press could report the story, and deal with both the human interest angle and the issue for public debate (the case being categorised – incorrectly, as a ‘right to die’ case, which is always interesting to the public – in fact, it is not a development of law at all, because people with capacity have always been able to refuse medical treatment, which is all that happened here) WITHOUT identifying the woman at the heart of the story. Clearly, the Press knew who she was, because they were able to doorstep people who knew her, look at her Facebook page and print pixelated images of her.

 

 

  • The naming propositions are reflected in the following points made by Mr Steafel:

 

The Daily Mail considers it has a duty to the public to report fairly and accurately on what happens in the courts. In order to engage the interest of members of the public in the kinds of issues the court decides, it is however necessary to publish articles and reports that people actually want to read. That means telling our readers about the facts of the cases, including the real people and places involved, and sometimes publishing pictures that relate to these people and places.

Where proceedings are anonymised, it is more difficult to engage our readers as the real people involved in the cases are necessarily invisible and the stories therefore lack a vital human dimension. It is human nature to find it more difficult to take an interest in a story about problems arising from, say, dementia or the right to die if the story does not feature identifiable individuals. If we cannot publish stories about important issues that people are drawn to read, this will inevitably limit and reduce the quality of public debate around these issues. It is in my view important in a democratic society that we should encourage informed debate I believe that the media, including the popular press, fulfils a vital function in this regard. By reading about the experiences of others, readers are likely to be able to identify with those people and understand what they are going through. But they are much less engaged – and correspondingly less focused on the surrounding public debate – where they cannot identify with real people, places and events. Pictures are a hugely potent way of engaging readers and one of the problems with covering anonymised cases is that it is impossible to include pictures in our stories which identify those involved.

 

  • I agree that fair and accurate reporting is vital if the public interest is to be promoted and I acknowledge that whether something is fair involves a value judgment and does not equate to it being balanced.
  • On the intense scrutiny that is required of the rival propositions relating to anonymisation I consider that a distinction can be made between (a) cases where pursuant to the default or general position under the relevant Rules or Practice Directions the court is allowing access (or unrestricted access) to the media and the public, and (b) cases in which it is imposing restrictions and so where the court is turning the tap on rather than off. But, I hasten to accept that this distinction:

 

i) simply reflects the strength of the reasoning that underlies the relevant COP Rules and Practice Directions, the established Scott v Scott exceptions and the positon referred to by Lady Hale that in many, perhaps most cases, the important safeguards secured by a public hearing can be secured without the press publishing or the public knowing the identities of the people involved, and soii) provides weight to the general arguments for anonymity to promote the administration of justice by the COP generally and in the given case, and does not

iii) undermine the force of the naming propositions as general propositions, with the consequence that the COP needs to remember that it is not an editor.

 

  • As I have already said (see paragraphs 94 and 95 above) the weight to be given to (a) the naming propositions, and (b) the conclusion on what generally best promotes the administration of justice will vary from case to case and on a staged approach to a particular case the weight of the naming propositions, and so this aspect of the factors that underlie and promote Article 10, will often fall to be taken into account in the context of (i) the validity of the reasons for their application in that case, and (ii) the impact of a departure in that case from the general conclusion on what generally promotes the administration of justice in cases of that type. This means that those reasons and that impact will need to be identified in a number of cases.
  • As I have already mentioned, although he refers to and relies on the naming propositions Mr Steafel does not say why in this case the relevant public interests, rather than the gratification of a prurient curiosity or interest of the public:

 

i) would be or would have been advanced by the identification of C and members of her family in the publicity that took place,ii) was advanced by the reporting that contained pixelated photographs and focused on C’s lifestyle, or

iii) why he says the balance will change on A’s 18th birthday between reporting that does not name C and her family and reporting that does.

Accordingly he does not say, as an editor, why in this case the view expressed by Theis J that “there is no public interest in C or her family being identified” either is wrong or will become wrong when A is 18.

 

The Press had the chance to set out arguments and provide evidence as to why naming the woman was necessary for the proper and accurate reporting, rather than to gratify prurient curiousity, and they did not do so. Nor did they take up the Court’s offer of the ability to file evidence setting out why they felt the previous reporting and methodology were appropriate…

 

  • S0, to my mind, in this exercise the COP needs to consider why and how the naming propositions, and so the proposed naming or photographs of C and her family members that links them to the COP proceedings, would or would be likely to engage or enhance the engagement of the interest of the public in matters of public interest rather than in those of prurient or sensational interest.
  • This has not been done in this case. But in contrast evidence has been put in on the likely harm to the relevant individuals that such reporting would cause.
  • The ultimate balance in this case on the dispute relating to duration. On one side are:

 

i) the Article 8 rights of all of C’s children,ii) the weight of the arguments for a reporting restrictions order in this case, and so of the general practice in the COP of making such orders in analogous COP cases where the family do not want any publicity and have given evidence of matters that affect their private and family life and that of P of a clearly personal and private nature,

iii) the acceptance by the media Respondents that until A is 18 the balance between the Article 8 rights and Article 10 rights in this case justifies the grant of a reporting restrictions order,

iv) the compelling evidence of the extent and nature of the harm and distress that reporting that identifies C and any member of her family as respectively the subject of (or members of the family of the subject of) the COP proceedings and so of MacDonald J ‘s judgment would cause, and

v) the ability of the court to make a further order if and when circumstances change.

 

  • On the other side are the general propositions relating to the benefits of naming the individuals involved.
  • I accept that Thiess J’s statement that “there is no public interest in C and her family being identified” and my indications of agreement with it at the hearing go too far because of the well-known and important naming propositions and the public interests that underlie them. But, in my view, the absence of an explanation of why:

 

i) the accepted balance changes on A’s 18th birthday and so of why identifying C and her family and linking them to the COP proceedings and the publicity at the end of last year would then promote the public interests that underlie Article 10, or why those public interests could not in this case then still be properly and proportionately served by reporting that observes the reporting restrictions order, orii) more generally why any such identification would at any other time promote (or have promoted) or its absence would harm (or would have harmed) the public interests that underlie and promote Article 10

means that the naming propositions have no real weight in this case and balance of the competing factors comes down firmly in favour of the grant of a reporting restrictions order until further order.

 

As there was to be an Inquest, and Inquests are open to the press and public, the Court did need to consider whether the Reporting Restriction Order should cover the naming of this woman or her family emerging from the Inquest.

The extension of the order to cover C’s inquest.

 

  • The earlier orders provide that the injunction does not restrict publishing information relating to any part of a hearing in a court in England and Wales (including a coroner’s court) in which the court was sitting in public. It seems to me therefore that the result the Applicant seeks would be achieved by changing the word “including” to “excluding”.
  • This is much closer to the position in Re S and Potter P addressed such an application in Re LM [2007] EWHC 1902 (Fam) where he said:

 

The Overall Approach

53. In approaching this difficult case, I consider that I should apply the principles laid down in Re S, ————-

54. There are obvious differences between proceedings at an inquest and the criminal process, most notably that the task of the Coroner and jury is to determine the manner of the death of the deceased and does not extend to determining questions of criminal guilt. In various cases that has been held to be a matter of weight in respect of witnesses seeking to protect their own personal safety. However, in this case, the inquest to be held is into the killing of a child, L, in the situation where a High Court Judge has already found as a matter of fact that the mother was responsible for L’s death and the application is made because harm is indirectly apprehended to a child who is a stranger to the investigative process. It is presently uncertain whether criminal proceedings will in fact be taken against the mother. If so, and the Coroner is so informed, then no doubt he will further adjourn the matter pursuant to s.16. of the Coroners Act 1988. If that is done, then the question of publicity and reporting restrictions in those proceedings will fall four square within the principles propounded in Re S. If not, and if, as seems likely, the mother continues to pose a danger to any child in her care, then, if continued, the reporting restrictions in the care proceedings would prevent that fact from reaching the public domain, despite its clear public interest and importance.

 

  • He carried out a detailed balance between the competing rights emphasising the strength and importance of a public hearing of the inquest and so the general conclusion on what promotes the administration of justice in such proceedings. Having done so he refused the injunction sought that the parents should not be identified.
  • Here the important issue of child protection is absent.
  • In the note of counsel for some of the media Respondents dated 28 January 2016 points are made about the importance of a proviso permitting the reporting of other proceedings conducted in open court, including a coroner’s court. But after the Applicant sought this extension junior counsel responded (as mentioned in paragraph 49 above) that his clients are neutral on this point.
  • As the approach of Potter P confirms an application for restrictions on the reporting of other proceedings conducted in open court engages important and powerful interests against the making of such an order. However, in my view:

 

i) the expressed neutrality of some of the media Respondents reflects a responsible and understandable stance that in isolation the inquest is unlikely to give rise to issues of public interest or to any such issues in respect of which the general propositions in favour of naming C or her family will have any significant weight, andii) in any event, I consider that that is the position.

 

  • The essential question is therefore whether, unless the court makes a further order, C’s family should be at risk of publicity relating to the inquest that makes the connection between them and the COP proceedings and so effectively of suffering the harm and distress that any other reporting that identifies them and makes that link would bring.
  • The history of the prurient nature of some of the earlier reporting is a clear indicator that such reporting might be repeated. But, even if that risk is discounted I have concluded that the balance comes down firmly in favour of extending the order to cover the inquest.
  • The main factors to be taken into account overlap with those to be taken into account in respect of the duration of the order.
  • On the one side are:

 

i) the points set out in paragraph 167 (i) to (v) as the inquest is likely to take place before a is 18 andii) the points set out in paragraph 175.

 

  • On the other side are:

 

i) the powerful and weighty reasoning that underlies the conclusion and practice that the administration of justice is best served by inquests being heard in open court without reporting restrictions, andii) the general and accepted force of the naming propositions absent any evidence or reasoning that they found a need for reporting of the inquest that makes the link with the COP proceedings.

 

And the order therefore stops the Press naming the woman as a result of reporting on the Inquest – they can still report on the Inquest itself. It obviously doesn’t mean that the Inquest itself is barred from naming her.

 

The judgment also annexes some helpful procedural guidance on applications for Reporting Restriction Orders within the Court of Protection.

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Coal Board and Age Assessments

Posted on April 26, 2016 by suesspiciousminds

 

It has been a very long while since we had a piece of case law on age assessment. If you are already saying “I bet it involves Croydon”, then gold star for robot boy, well done!

London Borough of Croydon v Y 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/398.html

Y turned up in this country from Nigeria. He claimed to have been born in 1999, and that he had been trafficked here. If true, that would mean that he was a child and entitled to accommodation via Croydon’s social work department and services and would be able to stay until 18. If not true, he would be an adult, and would probably be liable for deportation. [In this case, he absolutely would have been deported, it was the age argument that was putting that process on hold]

There’s therefore quite a vested interest in people who are not under 18 claiming that they are.

A number of individuals arrive in this country seeking asylum and claiming to be under 18. Most are males and have entered or have sought to enter by clandestine means. They are referred to as Unaccompanied Asylum Seeking Children (UASC). That description includes those who assert that they are under 18. Many who travel from countries where they allege they are being persecuted such as Afghanistan or Iraq will have been assisted by agents and in any event the advantages of persuading the authorities that they are under 18 are well-known. Those advantages include the automatic grant of leave to remain until aged 18 coupled with the inability to return to Member States of the European Union if the individual would otherwise be returnable in accordance with the Dublin Regulations. In addition, as children they will usually be entitled to the care and accommodation which a local authority is obliged to provide to children in need. Thus the assessment of their age is most important.

 

[Collins J in A v London Borough of Croydon [2009] EWHC 939 (Admin), ]

 

In this case, Croydon’s age assessment was based largely on Y’s physical appearance (as it was in a case I once had where the alleged 16 year old had a beard that Captain Birdseye would have been proud of). Y judicially reviewed that decision.

The Court gave some directions

 

5.On 1 September 2015, UT Judge Allen gave directions in the age assessment challenge proceedings. These included (i) that the matter be listed for a 4 day fact-finding hearing in order to determine Y’s date of birth; and (ii) that Y be granted permission to rely on reports by Dr Juliet Cohen, a forensic physician, Dr Susannah Fairweather, a child and adolescent psychiatrist and Ms Christine Beddoe, specialist adviser on human trafficking and child exploitation.

  1. The trial was fixed to start on 8 February 2016

 

Croydon then made an application to strike out the claim

 

On 20 November 2015, Croydon applied to the Upper Tribunal Asylum and Immigration Chamber for an order that the challenge to the age assessment should be struck out (or stayed) unless Y consented to and co-operated fully with (i) a dental examination (including a dental X-ray) by Professor Roberts, (ii) a psychiatric examination and (iii) an age assessment by two Croydon social workers. In support of this application, Croydon relied inter alia on the decision of this court in Starr v National Coal Board [1977] 1 WLR 63 to which I shall refer in some detail later in this judgment

 

[I’m not QUITE sure why that was an application to the Upper Tribunal Asylum and Immigration Chamber, rather than to the Judge who had given case management directions in the judicial review. It rather seems to me that those were applications for case management directions /orders in the judicial review fact finding, but the Court of Appeal don’t take up that point, so perhaps it is just a bad one on my behalf]

You’ll have seen the reference to Starr v National Coal Board 1977. It is not the same National Coal Board that comes up very infrequently (in judicial bias cases or recusal cases, citing Lord Denning’s remark that the Judge had intervened too much and ‘descended into the arena’)

 

The Starr principles

  1. The case of Starr concerned a claim in negligence for damages for personal injury, namely ulnar nerve compression. It was conceded by the plaintiff that it was necessary for the defendant, in preparing its defence, to be advised by a consultant neurologist who had had the opportunity of examining him. The defendant had nominated Dr X for that purpose. The plaintiff objected to examination by Dr X without stating his reasons. But he said that he was willing to be examined by any other consultant neurologist of similar qualification and experience to Dr X. The defendant applied for a stay of all further proceedings until the plaintiff submitted to an examination by Dr X. This court upheld the stay that had been granted by the judge.
  3. At p 70H, Scarman LJ said that in the exercise of its discretion in this class of case, the court has to recognise that in the balance there are “two fundamental rights, which are cherished by the common law and to which attention has to be directed by the court”. The first is the plaintiff’s right to personal liberty. The second is an equally fundamental right, namely the defendant’s right to defend itself as it and its advisers think fit, including the freedom to choose the witnesses that it will call. It is particularly important that a defendant should be able to choose its own expert witnesses, if the case is one in which expert testimony is significant. He went on to say that, if a defendant in a personal injuries case made a reasonable request for the plaintiff to be medically examined by a doctor chosen by the defendant, the plaintiff should accede to the request unless he had reasonable grounds for objecting to the particular doctor chosen by the defendant. Applying these principles to the facts of the case, Scarman LJ said at p 72H:
    1. “I have, therefore, come to the conclusion that the request for medical examination of the plaintiff by this particular consultant neurologist was a reasonable one; that, notwithstanding the matters that have been developed in argument, the plaintiff was unreasonable in refusing to submit himself to examination and that there is, in the matters that have been adduced to this court, no indication that justice to the plaintiff is liable to be imperilled if this doctor examines him, reports and ultimately gives evidence.”
  5. At p 75H, Geoffrey Lane LJ said:
    1. “…the defendants are not lightly to be deprived of the right to have the medical examination carried out by the doctor who, they are advised, would be the best doctor in the circumstances to carry out that examination.”
  7. Cairns LJ said much the same at p 77C.

 

It is a damn clever argument, and ’nuff respeck to whoever at Croydon came up with it. Essentially, relying on these Starr principles to say “If we are having to defend a case, but the person bringing it refuses to cooperate with assessments that we reasonably ask him to participate in, the case should be thrown out”

The Tribunal disagreed, and hence Croydon went to the Court of Appeal.

 

The decision at first instance

 

  1. The application was refused by UT Judge McGeachy on 8 December. He gave a short ex tempore judgment which included the following:
    1. “My decision is this. Although I have some considerable sympathy with the application made and I think it is most unfortunate that the applicant’s representatives have come to the conclusion that they will not cooperate I consider that the order sought is too draconian for me to either stay the proceedings or to dismiss the proceedings at this stage.

2. I consider that the fact that the applicant’s representatives have decided that he should not cooperate with a dental examination, which I consider might well have been useful, let alone the further age assessment to be carried out by Croydon is a matter on which it may well be that you would wish to address me at the hearing. I presume that is what you would want to do but I am not prepared to bring the proceedings to a halt now.”

  1. Further light is shed on the judge’s thinking by his decision of 16 December in which he explained why he refused permission to appeal to this court. He said:
    1. “(2) The grounds of appeal assert that I had failed to give reasons for not granting the application given the terms of the judgment in Starr v NCB [1977] 1 WLR 63. In my oral judgment I gave reasons for my decision. While I did not specifically refer to the judgment in Starr the reality is that that case can be distinguished from the present. It is of note that in Starr it had been conceded that it was necessary for the defendants, in preparing their defence to have the opinion of a consultant neurologist who had had the opportunity of examining the plaintiff. That is different from a case such as the present in which there is a challenge to a decision which has already been made. Moreover, while the case in Starr was a private law matter this is an action in public law where there is a public interest in the efficient disposal of the application, particularly as it relates to the age of the applicant who claims to be a child.

(3) I was entitled to take into account the efficient disposal of that application and that is why I stated that staying the proceedings at this stage was a decision which was too draconian: staying the proceedings would not resolve the issue before me. Given that the matter was to proceed to trial at the beginning of February 2016 it was appropriate that satellite litigation should be discouraged.

(4) I consider that my decision was an appropriate use of my case management powers in that it is a clear aim of those powers to ensure the efficient disposal of an application.”

The grounds of appeal

  1. Mr Holbrook submits that the judge erred in holding that the Starr principles did not apply in respect of Y’s refusal to consent to (i) an age assessment by two social workers employed by Croydon, (ii) a dental age assessment by Professor Roberts and (iii) a psychiatric assessment by Dr Tony Davies. He should have held that the Starr principles did apply and that, on a proper application of them, he should have acceded to Croydon’s application to stay or strike out Y’s claim unless he consented to each of the three assessments sought.

 

The Court of Appeal concluded that the Starr principles DID apply  (this was something of a shock to me when I was reading the case, though not an unpleasant shock) and that thus the appeal must succeed

 

Discussion

  1. It is unclear whether the judge addressed the Starr principles or not. It would have been surprising if he had not considered them, because they had been the subject of full argument before him. Paras 1 and 2 of the judgment might suggest that he accepted that they did apply, but that he was not willing in the exercise of his discretion to strike out the claim or order a stay because such a remedy was too “draconian” or in modern parlance “disproportionate”. On the other hand, in his reasons for refusing permission to appeal, he sought to distinguish Starr on the grounds that (i) it had been conceded in Starr that it was necessary for the defendant to have the opinion of a consultant neurologist who had had the opportunity of examining the plaintiff; and (ii) Starr was a private law claim, whereas the present claim was a public law claim.
  3. On balance, I incline to the view that the judge did address the Starr principles, but held that they did not apply for the three reasons that he identified when refusing permission to appeal. First, in Starr the plaintiff had conceded that it was necessary for the defence to have the opportunity for their expert to examine the plaintiff. Secondly, Starr was a private law claim, whereas the present case concerned a public law claim. Thirdly, refusal of Croydon’s application was an appropriate use of his case management powers to ensure the efficient disposal of the application.
  5. I would reject these reasons and substantially accept the submissions advanced by Mr Holbrook. As regards the first reason, the fact that the plaintiff in Starr conceded that it was necessary for the defendant to be advised by a consultant neurologist who had had the opportunity of examining the plaintiff was not essential to the reasoning of the court. The concession meant that the court could proceed on the basis that the medical examination was necessary for the proper conduct of the defence. If that had not been conceded, the court would have had to decide for itself whether the examination was necessary. The concession is a basis for distinguishing Starr from the present case on the facts. It cannot, however, be a reason for holding that the Starr principles only apply where there is such a concession. In the absence of such a concession in the present case, the judge had to decide whether all or any of the three examinations sought were reasonably necessary for the proper conduct of Croydon’s defence. It would seem that the judge was probably satisfied that the dental examination and the examination by the two social workers were reasonably necessary because he said in his judgment that he had “considerable sympathy with the application”; he thought that it was “most unfortunate that [Y’s] representatives have come to the conclusion that they will not cooperate”; and he considered that a dental examination “might well have been useful, let alone the further age assessment to be carried out by Croydon”.
  7. As regards the second reason, there is no basis in principle for confining the Starr principles to private law litigation. I accept that there are important differences between private and public law litigation. These differences are, for example, recognised by the fact that they are subject to different procedural regimes. In most judicial review litigation, the court does not hear oral evidence or make findings on disputed questions of fact. That is why there is little scope for the application of the Starr principles in public law cases. But in judicial review claims where the court does hear oral evidence and is required to make findings of fact, there is no reason in principle why Starr should not be applied in an appropriate case. The fundamental common law right of a defendant to defend itself in litigation to which Scarman LJ referred applies in any litigation. In a case where one party wishes to have an examination of the other party, the other fundamental common law principle identified by Scarman LJ comes into play. That is so whether the case involves a private law or a public law claim. Although the age assessment issue in the present case arises in judicial review proceedings, it is common ground that the issue is one of fact for the court to determine on the evidence adduced before it: see R (A) v Croydon London Borough Council [2009] UKSC 8, [2009] 1 WLR 2537. It follows that there is no reason to hold that the Starr principles do not apply merely because the issue arises in public law proceedings.
  9. The third reason is quite difficult to pin down. Mr Berry makes much of the point that this was a case management decision involving an exercise of discretion in respect of which this court should allow the judge a generous ambit: see, for example, Royal and Sun Alliance v T & N Ltd [2002] EWCA Civ 1964 at para 38 per Chadwick LJ and Walbrook Trust (Jersey) Ltd v Fattal [2008] EWCA Civ 427 at para 33 per Lawrence Collins LJ.

 

Given what is said here, the door is at least ajar for people arguing that the Starr principles that a person is entitled to insist on another party being assessed by an expert of their choice should apply to private law family cases, where two parents are arguing about who is suitable to look after their child and how much time the child should spend with the other. I think that it is more of a stretch for care proceedings (the Local Authority, who want the parent to undertake an assessment, are the applicant, not the defendant)

This part of the Starr principles though, I can see being deployed

 

The second is an equally fundamental right, namely the defendant’s right to defend itself as it and its advisers think fit, including the freedom to choose the witnesses that it will call. It is particularly important that a defendant should be able to choose its own expert witnesses, if the case is one in which expert testimony is significant.

 

Not perhaps so much with whether there should be an expert assessment at all, since that is rather covered by the Children and Families Act 2014 which sets out the ‘necessary to resolve the proceedings justly’ test, and Starr as case law can’t override later statute. But in a case where a Local Authority want the father to be assessed by Dr Leighton Buzzard, and the father would prefer Dr Ashby De-la-Zouch, then Starr (and this case) might be usefully deployed. The strong suggestion is that the witness should be of the defendant’s own choosing.

 

[I can also immediately sense that Ian from Forced Adoption will be wanting to deploy Starr and this case to say that a parent should be entitled to call evidence at a final hearing from whatever witnesses they choose – usually character witnesses, and it will be interesting to see how the Courts deal with that sort of argument]

Many of you who are familiar with age assessment cases are pondering the use of dental X-rays, which are pretty controversial in age assessment determination (in terms of reliability, efficacy and ethics of undertaking an X-ray when there is nothing medically wrong with a person for purely forensic purposes many dentists are unhappy about it). The Court of Appeal acknowledged those issues, but concluded that it wasn’t a reason for refusing to undertake the assessment.

it is said that the method of assessing age using mean data taken from dental x-rays is controversial and unreliable. But it is impossible for the court to reach a conclusion on whether this is correct or not. In my view, it cannot be a reason for refusing the order. No doubt, the reliability of the assessment based on dental x-rays will be investigated at the hearing.

 

 

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Suspended sentence for woman who saw her son “too often”

Posted on April 25, 2016 by suesspiciousminds

 

I read this story on ITV news way back in December 2015, and it took 20 seconds of googling to suggest that there might be more to it than the headline suggested.

http://www.itv.com/news/2015-12-15/suspended-sentence-for-woman-who-saw-her-son-too-often/

 

Because the woman in question had a previous history in the family Courts, that history being that she turned up with a report from a psychologist that she had in fact forged, by writing it herself and the named psychologist knew nothing about it. And that she went to prison for perverting the course of justice. That’s pretty unusual, even in the circles of contentious private law proceedings.

 

This matter has a very long and very sad history with continual court proceedings stretching over almost the entirety of X’s life. The mother was made the subject of a previous s.91(14) order at the conclusion of proceedings before Mrs. Justice Macur, as she then was. After that order had been made, the mother sought permission from Mrs. Justice Macur to make an application in respect of X. In support of that application, she filed what purported to be a report from a psychologist. When it was checked, it was discovered that that document was a forgery and the psychologist named denied any knowledge of ever writing any such report. Criminal proceedings were instituted against the mother for perverting the course of justice, during the course of which she was convicted and sentenced to a term of imprisonment of nine months. That was in or about October 2012. The mother was still serving that sentence when the matter came before me in May 2013.

 

That of course doesn’t mean that she wasn’t the victim of injustice THIS time around, but it does mean that you might be somewhat cautious about taking her word for it.

Anyway, the committal judgment is now finally up.

Y v Najmudin 2015

 

http://www.bailii.org/ew/cases/EWHC/Fam/2015/3924.html

 

The contact order provided for supervised contact, seven times a year.

Having heard evidence over a number of days both from the parties, from the children’s guardian and expert evidence, I concluded that it was in the welfare best interests of X that his contact with his mother was very restricted, that it should take place, as I have set out, seven times per year in a contact centre, and it had to be professionally supervised. That was because I was satisfied that the mother had lied to me throughout the course of the hearing in 2013 and that she had and would, if permitted to have unsupervised contact, cause emotional and psychological damage to her son.  

 

The mother breached that order by making her own arrangements to see her son, clandestinely and without the knowledge of the father. She was not taking up her sessions at the contact centre, because she was making her own arrangements.

Evidence

  1. The mother in her evidence asserts matters have changed. X is more mature and he is older and he is old enough to make decisions for himself. That may be the case, but the fact that this mother chose to tell this child about this hearing and talked in detail about the evidence, in my judgment amply demonstrates that the circumstances that I found in my judgment in 2013 have changed not one jot.
  4. She may no doubt love her son, but it appears, in my judgment, that she remains incapable of assessing and putting his welfare best interest first. In addition, she did not at any time, despite regular email communication with the father, either (a) tell him that she was meeting X; or (b) ask his permission to see X. At no time, the mother concedes, did the father in fact agree to change the contact arrangements as set out in the order of 3 May. In her evidence, the mother tells me that she could not remember the terms of the order made in May 2013; that she did not know that by seeing X as she did in the street that she was acting in breach of my order. I, without any hesitation, entirely reject that account from the mother. I am satisfied so that I am sure that she knew full well what I had ordered and what were the restrictions on her contact, but she has chosen, in my judgment, deliberately once more to flout the court’s order and to ignore it.
  9. She takes the view that X is old enough to make his decisions and if he asks to see her, then whatever there may be in a court order is completely irrelevant. Well, she is wrong. She, by taking the actions that she has, has put X in an immensely difficult position. The father tells me, and I accept that X has said to him that he loves his mother and he would like to see his mother, but he would like to see her in the supervised contact centre. The mother tells me that when she sees X he is pleased to see her. I have no doubt being a loving child that he would do that. But the father tells me that by the time he gets home, it is plain that X feels uncomfortable, worried and concerned about these chance meetings, knowing that they are not taking place as the court has ordered; knowing that they have not taken place as he would wish. The mother, in my judgment, has put X in an extremely difficult position. She has quite deliberately chosen not to tell Mr. Y about these meetings, nor to seek his permission. All of those facts demonstrate to me that the mother knew precisely what it was that she could and could not do by the court order, but she chose to breach it.
  12. Furthermore, I am reinforced in coming to that view in terms of the adverse effect on X because I accept the evidence from Mr. Y that X has taken now to taking different routes home from school in order that he may try and avoid seeing his mother in those haphazard meetings in public. I accept that evidence. I am also concerned to hear it because it demonstrates very eloquently the conflict that this young man feels about the circumstances that his mother has caused him to be in.
  15. On the totality of all the evidence that I have heard, I am satisfied so that I am sure that the mother has breached the order of 3 May 2013 and, in particular, para.6, on each of the occasions set out in the schedule of findings sought by Mr. Y. In respect of those matters, where the mother was either not sure whether she had seen X on a particular date, or said that it was in fact her partner, Mr. Z, for example, who went to the father’s home on Wednesday, 15 April, I unhesitatingly reject those explanations and I find as a fact that the mother has met with X as set out in that schedule.
  18. Accordingly, I am entirely satisfied that the mother is in breach of that order and she is in contempt of court and she now falls to be punished for that contempt. I will consider what punishment I should impose at 2 o’clock after I have heard anything Dr. Najmudin may want to say in mitigation of her breaches of the order as I have found.

 

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Something something oranges something

Posted on April 21, 2016 by suesspiciousminds

In a very classic Alan Moore comic, D.R and Quinch go to Hollywood, the two criminally twisted alien ‘heroes’ acquire a script from a genius writer who then dies, and they set off to Hollywood armed with the script to get the movie made and become hotshot Directors and auteurs.

The twist is, that although it is easy for them to get backing to make the movie and attract a monosyllabic star called “Marlon”,  it turns out that the handwritten script is almost totally illegible, save really for one word in the title, which is “Oranges”. So all they really know about the film they’re making is that the title is Something, Something, Oranges, Something.

Agent:So, where is this film set, exactly?
D.R.Well, does that word look more like “sandwich” or “submarine” to you?
Agent:Submarine
D.R.Well then, the film is set on a submarine, and not on a sandwich, as you might have previously imagined, man

 

It’s a great comic, anyway. Alan Moore knows the score.

http://mind-the-oranges-marlon.blogspot.co.uk/2009/11/dr-and-quinch-go-to-hollywood-part-1-by.html

 

(and part 2 is linked on that same page)

 

In this case in front of Holman J

Re I (A child) 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/910.html

The child involved had told the social worker and the Guardian SOMETHING. But he didn’t want the parents to know what it was. The social worker and Guardian didn’t think it would affect the case in any way, but if the parents knew what it was, they might want to use it in the final hearing (no, it doesn’t make any sense to me either). The LA felt that despite not wanting to share the information, they were under an obligation to do so. The Guardian thus made   an application to Court that the LA be ordered not tell the parents SOMETHING, but also not to let them know what that SOMETHING was or why they weren’t to know this SOMETHING. Or even in fact to know that the application was being made.

 

  1. Relatively recently, the child concerned imparted some information to a social worker, which he has repeated also to his guardian. I stress that the information does not relate or pertain at all to either of his parents or his stepmother, but relates and pertains essentially to himself. Nothing in the information is any way critical of anything done or not done, or said or not said, by either of his parents or his stepmother. The child himself has said very strongly that he does not wish either of his parents or his stepmother to know the information in question. The guardian considers that that confidentiality should be respected and that the information should not be disclosed or revealed to either of the parents or the stepmother. The local authority are very mindful and respectful of the confidentiality of a 15-year-old child who is in their care. They do not consider that, realistically and objectively, the information could or should affect any issue at the forthcoming final hearing of the care proceedings. But they do consider that if one or other or both parents did know the information, one or other or both of them might wish to seek to deploy it in some way as part of their case in the care proceedings.
  3. The local authority therefore consider that they are under a duty to reveal or disclose the information to both parents; and they have said that they will do so unless prevented by the court, or at any rate unless the court indicates that in its view the local authority are not, on the facts and in the circumstances of this case, under a duty to disclose the information. That issue having arisen between the local authority and the guardian, the guardian issued an application dated 18th March 2016 in form C2. She did in fact name the local authority and both parents as the respondents to the application in paragraph 1 of it. The relief sought in the application is, “An order preventing the local authority from disclosing this information”. The application form goes on to ask that, “In order that the other parties are not made aware of this application or that it is being heard, we would ask that…” it be heard before the scheduled next hearing in this case and that it “…be dealt with privately or that the court makes some other arrangement to ensure that the other parties are not put on notice.”

 

Adding to the weirdness of this, it turned out that the Guardian’s previous counsel, having been appraised of this knotty problem, had mentioned it to a colleague in his chambers, without knowing that said colleague would then go on to be instructed by one of the parents.

 

At this point it is necessary to record a further twist in this particular case which does, or may, add a further layer of complexity. I have been told today by the guardian, Miss Tracey Cross, that her previous counsel (not, I stress, Mr Andrew Bainham, who appears on behalf of the guardian today) had mentioned the factual circumstances and the problem in this case to a colleague in his chambers, without either he or that colleague realising that the colleague had been, or was going to be, instructed on behalf of the father in these proceedings. It thus appears (although this will need further clarification from the two counsel concerned) that, inadvertently, counsel who is now instructed on behalf of the father in these proceedings may already be in possession of the confidential information in point. If the facts are as I have just summarised them, then some quite difficult questions may arise in relation to the professional duties of counsel to his client on the one hand, and the aura or carapace of candour and confidentiality which may attach on the other hand when one barrister discusses a knotty problem with a colleague.

 

 

The Judge had become (rightly) troubled by the notion of deciding whether information could be withheld from parents at a hearing at which they were not present

 

This led to consideration of two authorities in particular. The first is a decision of the Court of Appeal in Re: M (Disclosure) [1998] 2 FLR 1028, which itself refers with approval to the decision and guidance of Johnson J in Re: C (Disclosure) [1996] 1 FLR 797. The other authority considered today is that of the House of Lords in Official Solicitor to the Supreme Court v K and another [1965] AC 201, which makes reference at pages 215 B and 226 A to C to a practice in situations such as this of counsel being informed of the actual nature and content of the confidential information, on terms, or on the basis, that counsel will not communicate the actual nature and content of the confidential information to his or her solicitor or client without the permission of the court. In the much later authority of Re: M (Disclosure) that practice is also referred to with apparent approbation by Lord Justice Thorpe at page 1031 G.

  1. In all events, it seems to me, having regard to the clear authority of the Court of Appeal in Re: M (Disclosure), that I simply cannot with propriety substantively conclude today’s hearing or rule upon the application which the guardian has issued. If, in another situation, the local authority and the guardian were both in agreement that the information in question was not such that there was any duty to disclose it (for instance, if both agreed that it was too unimportant or trivial to require disclosure), then non-disclosure might indeed follow without any involvement at all on the part of the court. But the situation in the present case is that a dispute has arisen between the guardian and the local authority with regard to disclosure of this information, and a formal application has been made by the guardian to the court upon which the court is required to rule.
  3. If, in those circumstances, I were simply to rule on this matter today, without any knowledge whatsoever on the part of the parents and their legal advisors, then it seems to me that the court would risk complicity in a deception, not as to the substance of the information itself (which the law clearly establishes may in certain circumstances be withheld), but as to procedures which have taken place in the course of the set of proceedings with simply no notice at all to the respondents. Whilst Lord Justice Pill said in Re: M (Disclosure) at page 1033 F that he would not exclude the possibility that hearings of this kind may be held ex parte, he continued that, “I would hope that such situations would occur only rarely”. He then went on to give an example which is far removed from the facts and circumstances of the present case.
  5. I am deeply conscious that whenever disclosure issues of this kind arise there is an inherent problem once any notice is given. The problem is that if persons such as parents know that there is some information which it is sought, and may perhaps be ruled by the court, not to be disclosed, then “conspiracy theory” and imaginings may inevitably take over. There is indeed a risk in this sort of situation that a respondent, knowing that some information has been withheld from him or her, may start imagining that the information is more grave than the information actually is. It seems to me, however, that that is a risk that is simply inherent in a situation of this kind, and that the authority of Re: M (Disclosure) clearly requires that, on the facts and in the circumstances of the present case, notice is given. For those reasons, I will accordingly adjourn this whole hearing to start afresh on a later day of which notice is given to the three respondents and their legal advisors.
  7. Mr Bainham asked that I should list it part-heard before myself in order to maintain judicial continuity. For my part, however, I consider that it should be heard by any other judge except myself. I have now heard quite considerable argument, and indeed ventured some provisional views on the substance of the matter. It seems to me that if there is now to be a hearing on notice to the respondents, it should be a hearing which genuinely starts afresh, before some judge who comes to the matter with a fresh mind and is influenced only by arguments and material (apart from the information itself) which all parties and their advisors are enabled to hear and read. So, I shall direct that it is not heard again before myself.

 

At the next hearing, counsel for parents could be ASKED whether on instructions, they would agree to have the relevant information on the basis that it would not be disclosed – but the Court can’t make counsel do that unless they agree and their clients agree.

 

If counsel for any given one of the respondents is willing to give, and is able to give, a written assurance that he or she will not, without the further permission of the court, reveal or disclose the information in point to his or her client, then that counsel may be supplied in advance of the hearing with the whole slim bundle which is before me today, which contains the information in point and such evidence as there is in relation to it. That, however, will be a matter for the decision of each respective counsel. If he or she is unwilling or unable to give that assurance, then he or she cannot for the time being be told the information.

 

And what about the counsel instructed for father, who may have been inadvertently told what the information is?

I am deliberately not naming in this judgment the two counsel who had the conversation to which I have referred. I do not know whether the counsel who was party to that conversation, who is or was acting on behalf of the father, will be able personally to attend the hearing which has been fixed in London, but it is essential that there is some form of evidence or material, if he cannot attend that hearing, which makes quite clear the extent of his existing knowledge and what use, if any, he has made, or still intends to make, of any information so imparted.

 

(I assume there’s some sort of order which notifies him of this requirement)

 

Very tricky.  I’m sure I can make a very informed guess as to the nature of the information being held back here, it doesn’t take Sherlock Holmes to work out what it might be, but I won’t spell it out. We’ll just leave it as “Something, Something, Oranges, Something”

 

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The Court’s Magical Sparkle Powers (TM) – can you take a DNA paternity test from a dead man?

Posted on April 21, 2016 by suesspiciousminds

In Spencer V Anderson 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/851.html

a Mr David Spencer, now 20 years old, wanted to establish whether the late William Anderson, who had died intestate (without making a will), was his father. William Anderson had provided tissue samples as part of his medical treatment. Could those tissue samples be used to extract DNA, and thus undertake a paternity test? And presumably establish a form of claim against Mr Anderson’s estate.

It is a judgment by Mr Justice Peter Jackson, so it is highly informative and elegant.

 

  • The application under s.55A was issued on 18 September 2015. His Honour Judge Duggan made a series of directions, giving the respondents and the hospital the opportunity to make representations, and listing the DNA testing issue for decision. He identified the following questions:

 

(1) Does the phrase “bodily samples” in section 20(1)(b) Family Law Reform Act 1969 extend to DNA material already extracted?

(2) Alternatively, does the inherent jurisdiction of the High Court extend beyond the ambit of the Family Law Reform Act 1969 to permit comparison of the DNA of an applicant with samples of DNA already extracted from bodily samples of the deceased and kept in storage?

(3) What is the legal basis of paragraph 66 of Mrs Justice Thirlwall’s judgment of Goncharova v Zolotova [2015] EWHC 3061 (QB)?

(4) Does the testing of the DNA already extracted from a deceased person require consent and if so from whom?

(5) Is the refusal of consent by the deceased’s estate capable of creating an adverse inference whether under the Family Law Reform Act 1969 or the inherent jurisdiction of the High Court?

 

  • I will consider each of these questions in the course of this judgment.

 

Damn good set of questions, those.

 

D FIRST ISSUE: DOES THE FLRA 1969 APPLY?

    • On behalf of Mr Spencer, Mr Kemp initially sought to argue that a direction might be given under the FLRA. However, in the course of the argument he conceded that this argument could not succeed. In my view, the concession was rightly made for the reasons analysed above, which can be summarised by saying that the FLRA:
  • governs the taking of samples from living people
  • makes no provision for samples being taken after death
  • does not contemplate separate directions for sampling and testing
  • does not provide for the testing of existing samples
  • does not provide for the testing of samples that had been taken for reasons other than establishing parentage
  • requires samples to be collected in accordance with regulations
  • does not provide for the testing of DNA itself.

 

  • Mr Kemp rightly described the difficulties as being insurmountable and accepted that in the circumstances of this case a direction under s.20 is not available to his client.
  • There being no other legislation in point, I therefore conclude that there is no statutory power to direct post-mortem scientific testing to establish a person’s biological relationships and consequently no statutory power to make a direction for the testing of Mr Anderson’s stored DNA

 

E SECOND ISSUE: DOES THE HIGH COURT HAVE AN INHERENT POWER TO ORDER TESTING?

 

  • On behalf of Mr Spencer, it is argued that there are two possible sources of such a power: Civil Procedure Rules r.25.1 (or its equivalent, Family Procedure Rules r.20.2) or the inherent jurisdiction.

 

(By “Inherent Jurisdiction” here, everyone means the Court’s “Magical Sparkle Power” (TM), which I have decided should be used from now on, to illustrate just how much of a legal sleight of hand the whole thing is)

The inherent jurisdiction

 

  • The inherent jurisdiction of the High Court is a description of the court’s common law powers insofar as they have not been removed or supplanted by statute. In the Court of Appeal in Re F (above) Lord Donaldson MR described the common law as

 

“… the great safety net which lies behind all statute law and is capable of filling gaps left by that law, if and insofar as those gaps have to be filled in the interests of society as a whole. This process of using the common law to fill gaps is one of the most important duties of the judges. It is not a legislative function or process – that is an alternative solution the initiation of which is the sole prerogative of Parliament. It is an essentially judicial process and, as such, it has to be undertaken in accordance with principle.”

 

  • The inherent jurisdiction is therefore a jurisdiction of long-standing that nowadays exists in a number of important contexts. With regard to children, it has been used in a wide variety of creative ways to supplement statutory powers, both through the medium of wardship and otherwise. As recorded in FPR PD 12D, the court can, for example, make orders to restrain publicity, to prevent an undesirable association, to endorse medical treatment, to protect children abducted from abroad and to recover children from abroad. These orders not only affect the individual family members but are also directed towards third parties, either as orders or requests.
  • More recently, the jurisdiction has been developed to provide remedies for the protection of vulnerable but not legally incapable adults. In Re SK [2004] EWHC 3202 (Fam), Singer J said:

 

“I believe that the inherent jurisdiction now, like wardship has been, is a sufficiently flexible remedy to evolve in accordance with social needs and social values.”

That manifestation of the jurisdiction was cemented by Munby J in Re SA [2005] EWHC 2942 (Fam) and the Court of Appeal has confirmed that it has survived the enactment of the Mental Capacity Act 2005: see DL v A Local Authority [2012] EWCA Civ 253.

 

  • These cases and others concerned the protection of vulnerable individuals at risk of coercion or abuse. At the other end of the scale, the inherent jurisdiction can relate to the court’s power to control its own procedures, as in Bremer Vulkan v. South India Shipping [1981] 1 AC 909, where Lord Diplock said this at 977:

 

“The High Court’s power to dismiss a pending action for want of prosecution is but an instance of a general power to control its own procedure so as to prevent its being used to achieve injustice. Such a power is inherent in its constitutional function as a court of justice. Every civilised system of government requires that the state should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. … The power to dismiss a pending action for want of prosecution in cases where to allow the action to continue would involve a substantial risk that justice could not be done is thus properly described as an “inherent power” the exercise of which is within the “inherent jurisdiction” of the High Court. It would I think be conducive to legal clarity if the use of these two expressions were confined to the doing by the court of acts which it needs must have power to do in order to maintain its character as a court of justice.”

 

  • The inherent jurisdiction is plainly a valuable asset, mending holes in the legal fabric that would otherwise leave individuals bereft of a necessary remedy. The present case (DNA testing) might be said to fall between the above examples of the court’s inherent powers (protection of the vulnerable, striking out).
  • At the same time, the need for predictability in the law speaks for caution to be exercised before the inherent jurisdiction is deployed in new ways. The court is bound to be cautious, weighing up whether the existence of a remedy is imperative or merely desirable, and seeking to discern the wider consequences of any development in the law.

 

That is the problem with the Court’s Magical Sparkle Power – because it isn’t set down properly in statute what the powers are, and the limitations of those powers, and the constraints for using those powers, it ends up being built on with case after case – extending its reach outwards and upwards, and then each case thereafter says “Well, if Munby J was able to use the Court’s Magical Sparkle Powers to do X, then I can use them to do Y” and the next Judge says “Well, if Colombo J was able to use the Court’s Magical Sparkle Powers to do Y, then I can use them to do Z” and so it goes.

There’s a neat argument against the Court’s Magical Sparkle Power here, which rather appealed to me

Submissions on behalf of Mrs Anderson

 

  • Mr Mylonas QC and Ms Street advance the following propositions in relation to the existence of an inherent jurisdiction:

 

(1) The High Court does not have the power to make any order it wishes; see Hayden J in Redbridge London Borough Council v A [2015] Fam 335:

“The principle of separation of powers confers the remit of economic and social policy on the legislature and on the executive, not on the judiciary. It follows that the inherent jurisdiction cannot be regarded as a lawless void permitting judges to do whatever we consider to be right…”

(2) The court’s powers are limited by s.19(2) of the Senior Courts Act 1981:

“Subject to the provisions of this Act, there shall be exercisable by the High Court—

(a) all such jurisdiction (whether civil or criminal) as is conferred on it by this or any other Act; and

(b) all such other jurisdiction (whether civil or criminal) as was exercisable by it immediately before the commencement of this Act (including jurisdiction conferred on a judge of the High Court by any statutory provision).”

So, the applicant must, but cannot, show that there was jurisdiction to make an order of this kind before the coming into force of the Senior Courts Act.

(3) Paternity testing within litigation is regulated by Part III of the 1969 Act. Any power to make a direction for scientific testing to establish paternity under the inherent jurisdiction was ousted by the Act: Re O (A Minor)(Blood Tests: Constraint) [2000] Fam 139.

In that case, two men had each obtained directions for the testing of a child to establish paternity, but the mothers, with care and control of the child, refused to consent to the testing. Wall J accepted with reluctance that there was no power to compel the mothers to allow testing when the statute required their consent: this soon led to the enactment of s.21(3). At page 151, he stated:

“In my judgment, unattractive as the proposition remains, both the inherent jurisdiction to direct the testing of a child’s blood for the purpose of determining paternity and any consequential power to enforce that direction is entirely overridden by the statutory scheme under Part III of the Family Law Act 1969. If the remedy is to be provided it is, accordingly, for Parliament to provide it.”

It is said that the present position is on all fours with that facing the court in Re O. Although the decision was given nine months before the Human Rights Act came into effect in October 2000, the court showed itself well aware of the rights engaged on all sides.

(4) There are sound policy reasons for the absence of any statutory power to permit testing in the circumstances of this case. DNA testing is an interference of the highest order with the subject’s right to confidentiality and the privacy of their known family members whose genetic relationships will also be revealed by such testing. If the court allows post-mortem DNA testing in the absence of consent, this is likely to discourage patients from providing DNA during medical treatment and encourage those in Mr Spencer’s position to defer making applications until after the death of the alleged father so as to circumvent the absence of consent. If testing in a case such as the present were to be permitted, it ought to be by way of a scheme (i) devised following the kind of consideration, consultation and scrutiny which Parliament but not the High Court can carry out; (ii) which provides for regulation (eg guaranteeing the integrity of samples and testing); and (iii) which provides clear rules which can be easily understood by healthcare professionals, patients, their family members and those who seek testing.

(5) At present, the law is clear: you cannot test samples taken for one purpose for a different purpose without consent. That clarity would be lost if an inherent power was found to exist. The law must be accessible and sufficiently precise to enable the individual to understand its scope and foresee the consequences of his actions: R v Purdy [2010] AC 345 at 390. In the present case, Mr Anderson was deprived of the opportunity to require his samples to be destroyed or of making a will excluding Mr Spencer.

(6) The decision in CM v EJ does not take matters further forward. It was not a case about paternity testing, no arguments were made against the existence of an inherent jurisdiction, and the use of the jurisdiction was consistent with the relevant statutory scheme, not inconsistent with it.

(7) Re H and A is a case in which the power to order testing was not in question. Likewise, the decision in Jaggi concerned the failure to exercise a power that existed, not the question of whether a power existed in the first place.

(8) As Re O demonstrates, the interests of justice alone do not provide a basis for ordering testing where no power to do so has been identified.

(9) Similarly, a series of cases in the analogous field of assisted reproduction show the reluctance of the courts to subvert a carefully-devised statutory scheme.

 

I happen to agree with all of that, but good luck in ever persuading a Judge that they should make a decision limiting the use of Magical Sparkle Power. You may have picked up from time to time, that I don’t much like the Jedi hand-wave that is Magical Sparkle Power, with Judge’s deciding that they can conjure powers out of thin air to solve a problem. It doesn’t sit well with me in terms of checks and balances.

 

Anyway, the important thing is that Mr Justice Peter Jackson did not agree with me, or the estate of Mr Anderson (and I don’t think on the law as it stands that was a wrong decision – the problem is, as I alluded to earlier, that the law in relation to Magical Sparkle Power is developing as a series of stepping stone cases, each relying on the one before it to extend the power further, and with no real tackling of the foundations of the earliest stepping stones and whether the Courts were ever given quite the scope of Magical Sparkle Power that they are now using)

 

Conclusion as to inherent jurisdiction

 

  • In my view, the following features are relevant to the existence or non-existence of an inherent power:

 

(1) Statutory interpretation

Before the enactment of the FLRA, the preponderant judicial opinion was that there was power to direct the taking of blood to establish a child’s paternity, and such orders were on occasion made: see In re L (An Infant) [1968] P 119 and B (BR) v B (J) [1968] P 466.

The FLRA is the only statute concerned with testing for evidence of biological relationships. It is comprehensive in relation to cases falling within its scope: Re O. In that case, the issue that had arisen lay squarely within the scheme of the Act. It fell under what Wall J referred to at 150 as the “rug” of the legislation, or what Hale LJ referred to as the “footprint” in the Court of Appeal in Re R (see paragraph 39 of the House of Lords’ opinions). In contrast, the testing of DNA post-mortem falls distinctly outside the scope of the legislation. The FLRA cannot be read purposively or convention-compliantly so as to cover cases of the present kind. I therefore do not accept that a power to give directions for post-mortem DNA testing has been ousted by the Act.

Nor do I accept that the court’s powers are limited by s.19(2) Senior Courts Act 1981. This formal, descriptive subsection cannot be taken to have defined or circumscribed the powers of the High Court, or to have frozen them as at the date of the legislation. Were it otherwise, the vulnerable adult jurisdiction could not have existed.

There is a legislative void, both in relation to post-mortem paternity testing and in relation to paternity testing using extracted DNA. I accept that in an area of this kind, policy considerations arise which would be better regulated by Parliament than by individual decisions of the court. In one sense, this speaks for judicial reticence. However, there is no indication that Parliament has turned its attention to the situation that arises in the present case, or that it is likely to do so at any early date. This gives rise to the possibility of an indefinite period during which individuals would be left without a remedy.

(2) Consent

Both the FLRA and the HTA (and the HFEA 1990 and 2008, insofar as they may be analogous) regard consent as the central component of lawfulness.

It is necessary, when considering the availability of a remedy after death, to consider the situation that would have arisen in life. The person concerned would have had the right to decide whether or not to participate in paternity testing and to allow his human tissue to be used for that purpose.

Although neither the FLRA nor the HTA apply to extracted DNA as opposed to human tissue, the use of human tissue is a necessary forerunner to the extraction of DNA and similar considerations and sensitivities must apply when DNA testing is being considered.

If the issue related to the post-mortem testing of human tissue (as opposed to DNA), the terms of the HTA would apply. For testing to be lawful, there would have to have been consent from the individual in life or by a relative after death. Or there would have to be a court order.

(3) The public interest

An intervention of the kind suggested in this case might give rise to uncertainty and concern within the medical world and beyond at the possibility that such orders might be made in other cases, or that in effect the door was being opened to post-mortem paternity testing on demand. Although it does not arise in the present case, the prospect of applications for exhumation cannot be regarded as fanciful when one recalls the circumstances in Mortensen and Jaggi, or indeed those of Richard III.

Against this, there is no sign that the present application has caused alarm to the major hospital involved in the present case (indeed it appears to welcome the court’s assistance), or that applications of this kind are likely to be at all numerous, particularly if they could only be heard in the High Court, and thereby be subject to very close scrutiny. The prospect of this limited development in the law affecting the behaviour of the patient population as a whole is likely to be more imaginary than real.

(4) Identity

Knowledge of our biological identity is a central component of our existence. The issue can have consequences of the most far-reaching kind, perhaps above all for those who do not know or are not sure of their parentage. Within our lifetimes, DNA testing has made the truth available. At the same time, it has made all other kinds of evidence almost irrelevant. While it remains possible to reach a conclusion about paternity without scientific tests, the practical and psychological consequences are different. A declaration made without testing is a finding, while the result of a test is a fact.

The contrast can be found in the opinion of Lord Wilberforce in The Ampthill Peerage Case [1977] 1 AC 547 at 569:

“Any determination of disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book.”

While at 573 he said:

“One need not perhaps, on this occasion, face the question whether, when technology or science makes an advance, so as to enable to be known with certainty that which previously was doubtful, such evidence ought to be admitted in order to destroy the binding force of a judgment or of a declaration with statutory force. It may be that within the limits within which a new trial may be ordered and, on the precedents, those limits are comparatively short, such evidence could be admitted for that purpose.”

The European Convention, as interpreted in Jaggi, underscores the importance of the opportunity to discover one’s parentage. Although the Convention cannot on its own create a remedy, it is desirable that our law is consistent with the approach taken in other jurisdictions if that is possible.

(5) The interests of others

It is a peculiar feature of genetic testing that it inescapably has the potential to affect not only the individual being tested but also those to whom he is closely related. Depending on the facts, the rights of surviving relatives may be engaged, but it is difficult to envisage a situation in which the establishment of the truth about biological relationships could amount to an unlawful interference with those rights; at the very least any interference may be necessary and proportionate. The rights of third parties certainly cannot represent an absolute bar to the existence of an inherent power.

(6) The interests of justice

When all is said and done, the court is faced with a civil dispute that must be resolved. In cases where a power exists, it has long been emphasised that the establishment of the truth is both a goal in itself and a process that serves the interests of justice. As noted above, where a court makes findings of fact based upon witness and documentary testimony, there is always the possibility of error. Evidence will be incomplete because (by definition in a case of the present kind) people will have died and memories may have faded. When dealing with matters as important as parentage, the need to reach the right conclusion is obvious. The prospect of a court trying to ascertain the truth to the best of its ability when the truth is in effect there for the asking is a troubling one. Account must also be taken of the needless waste of resources that would accompany a trial involving narrative evidence.

(7) The range of circumstances

The existence of a power cannot depend upon the circumstances of the particular case. What is relevant is the range of cases that might arise. It is possible to envisage opportunistic and unmeritorious applications, but there might equally be applications, perhaps concerning young children, where the need to know the truth about parentage is compelling. The answer cannot be that the court can consider an application in the second case but not in the first: jurisdiction cannot depend on merits.

 

  • Reflecting the complexity of the legal and ethical issues, the above features pull in a number of different directions. If the only considerations related to the interests of the deceased and the public interest, the arguments against the existence of an inherent power would surely prevail. However, the interests of the living and the interests of justice must also be brought into consideration.
  • Taking all these matters into account, my conclusion is that the High Court does possess an inherent jurisdiction that it can properly deploy to direct scientific testing to provide evidence of parentage in circumstances falling outside the scope of the FLRA. If the court was unable to obtain evidence of this kind, severe and avoidable injustice might result. Awareness of the implications of ordering testing without consent and of the wider public interest does not lead to the conclusion that the jurisdiction does not exist, but rather to the realisation that it should be exercised sparingly in cases where the absence of a remedy would lead to injustice.

 

This is not a surprising conclusion. Magical Sparkle Power continues to be most efficacious in evey case. The remedy for all ills.

 

Having established that the Court COULD use Magical Sparkle Power to compel a DNA test from a deceased person’s tissue samples, given for another reason, the Court then had to decide whether they SHOULD in this case.   (This of course raises the issue as to whether someone who is terminally ill should make legal arrangements for the destruction of any tissue samples on death, or whether that should be part of a formal consent procedure when the samples are taken, but that’s a bit beyond our scope)

 

F THIRD ISSUE: SHOULD TESTING BE DIRECTED IN THIS CASE?

 

  • The following factors are relied upon in support of testing:

 

(1) Mr Spencer’s natural desire/right to know his parentage.

(2) Combined with this, the value that knowledge of paternity will have in clarifying his medical status and the need (or not) for intrusive investigations.

(3) The interests of justice and the need for the best available evidence: cf Re H and A.

 

  • In response, it is said on behalf of Mrs Anderson that:

 

(1) An order for testing would be an unjustified interference with her own Art. 8 rights by compounding a distressing situation and creating a risk that a genetic relationship would be identified between herself and a person who has caused her stress and anxiety.

(2) Human DNA is intensely personal and very strong justification is therefore required if it is to be used for any purpose without that person’s consent. The sample was provided by Mr Anderson for his own benefit during the course of medical treatment. He was entitled to a high expectation of confidentiality.

(3) Testing could not have taken place in Mr Anderson’s lifetime without his consent. This statutory bar has been given greater weight than any other rights, including those of a supposed child. Mr Anderson’s option to consent or withhold consent during his lifetime (and to explain his decision) was circumvented by Mr Spencer’s choice not to raise the issue until after his death. It would be unjust if his extensive delay allowed Mr Spencer to achieve testing without consent.

(4) To allow testing in this case would be against the public interest by undermining patient confidence in the confidentiality of providing samples for medical treatment.

(5) Mr Spencer’s delay deprived Mr Anderson of the opportunity to make decisions about his private life and his property.

(6) Mr Spencer’s interest weighs less heavily in the balance than that of Mr Anderson, Mrs Anderson and the public interest because:

(i) His lack of interest in testing until after Mr Anderson’s death shows that he had no interest in testing for paternity in order to satisfy himself of that relationship for its own sake. The court is not obliged to take positive steps to uphold his rights in these circumstances.

(ii) If the request is now motivated by inheritance reasons, his delay denied the deceased the opportunity to manage his estate in the light of relevant knowledge.

(iii) If the request is now motivated by medical reasons, on Mr Spencer’s own case, a test would merely serve to confirm what he already believes to be the case; if no testing is carried out he will continue to benefit from low-risk screening which will reduce his chance of cancer.

(7) Making no order for testing in this case would not exclude the possibility of an order for testing of a DNA sample being made on different facts, for example, where national security or the life of a child was at stake.

 

  • Weighing these matters up with appropriate caution, and seeking to strike a fair balance between the competing private and public interests, I have reached the conclusion that scientific testing should take place to seek to establish the paternity of Mr Spencer by using the stored DNA sample of the late Mr Anderson. These are my reasons:

 

(1) If the application for a declaration of parentage had appeared to be speculative or opportunistic, the request for scientific testing would probably not have succeeded. However, the overall evidence here raises the real possibility that Mr Anderson was Mr Spencer’s father, he having undeniably been in a relationship with Mr Spencer’s mother at the time of conception.

(2) It is common ground between the parties that there is a significant medical issue that turns on the possibility of a biological relationship between Mr Anderson and Mr Spencer. It is of course possible for Mr Spencer to be tested periodically by colonoscopy, but that is only a partial solution because he is surely entitled to know the reason why he should undergo those procedures, or to be relieved of the need to do so. As recently as February 2015, Mrs Anderson regarded it as “essential” that Mr Spencer’s paternity should be established. It does not now lie easily in her mouth to say the opposite.

(3) Although it is possible that the late Mr Anderson (like the alleged father in Jaggi) might have refused to consent to testing during his lifetime, there is no particular reason to regard that as likely. Whether or not he would have welcomed the possibility that he was a father, it may not do justice to his memory to assume that he would have withheld his support from a young man who might have inherited a serious medical condition from him.

(4) The information, in the form of the DNA sample, is readily available and does not require physically intrusive investigations. In particular, it does not require exhumation, as to which particular considerations would undoubtedly arise.

(5) There is no objection on behalf of the hospital, which might be seen as being a nominal representative of the public interest in this case.

(6) The interests of third parties, and in particular those of Mrs Anderson to the extent that they may be engaged, are, with all respect, of lesser significance. There is no indication of any real risk of harm and the establishment of the truth carries greater weight than the question of whether it is palatable.

 

  • I accordingly find that Mr Spencer’s interest in knowing his biological parentage, the questions raised by the medical history, and the marked advantages of scientific testing as a means of resolving both issues, collectively carry more weight in the particular circumstances of this case than the counter-indicators to testing that undoubtedly exist. It is in the interests of justice that testing should take place, and it is a proper exercise of the court’s inherent jurisdiction to secure this outcome.
  • For completeness I would add that, had testing not been directed, the court would have heard the evidence in the normal way. Statutory inferences could not be drawn in a case where the statute did not apply, but this would not have prevented the court from drawing whatever inferences seemed proper from the evidence before it.
  • I pay tribute to the considerable help that I have received from counsel and invite them to submit a draft order that reflects this decision and replicates so far as possible the protections that would accompany a direction for testing under the FLRA.

 

Magical Sparkle Power, eh. Amazing. For me, it’s a bit like Superman. If you’re writing a Superman comic or film, you know the powers that Superman has been given. It’s a broad spectrum – he has super strength, he has flight, he has X-ray vision, he has heat rays, he has extraordinary speed. That’s a lot to work with, it should cover most of what you need in any given scenario. If you start adding to that with the power to kiss people and make them forget things, to peel his logo off his chest and throw it as a super weapon, to fly so fast round the earth backwards that he can turn back time, then you’re CHEATING.  Superman does have super powers, yes, but he has particular and specified superpowers. He can’t just suddenly produce claws out of his fists because Krypton, or have control over metal because “Superman”.  So “Magical Sparkle Power” is my little way of reminding myself and others that there are consequences to using the inherent jurisdiction to do wholly new and imaginative things that aren’t written down anywhere, because every time you do, it is stepping stone that others will stand on to go a little bit further.  Some of these stepping stones are now just floating in thin air.

 

 

 

 

 

 

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